Application of proportional electoral system at municipal elections: some aspects of the constitutional law / Применение пропорциональной избирательной системы на муниципальных выборах: некоторые конституционно-правовые аспекты

Дементьев Владислав Александрович аспирант, Национальный исследовательский университет "Высшая школа экономики" 111116, Россия, г. Москва, ул. Энергетическая, 10, корп. 2 Dementyev Vladislav Aleksandrovich Post-graduate student, the department of Constitutional and Administrative Law, National Research University “Higher School of Economics” 111116, Russia, Moscow, Energeticheskaya Street 10, building #2 w.dementjew@yandex.ru Другие публикации этого автора

Formation of the coalition branches of public authority on the basis of proportional electoral system in its variations in the Russian Federation has a long history. For the first time on the national the proportional electoral system was implemented in 1917 at the elections of the Russian Constituent Assembly ^{[4, p. 21-22]}. However, since during the Soviet period the proportional electoral system was not being used due to the single party nature of the political regime, the system saw its biggest development over the last two decades.

It is worth noting that unlike in the general elections, there was no experience of application of proportional electoral system at the local elections in Russia prior to the 1990’s. The legal foundation for implementation of proportional electoral system into municipal elections became the Presidential Decree from October 29, 1993 No. 1797 “On the statement of basic provisions about elections to local self-governance", which established the right of the branches of government authority of the constituents of the Russian Federation to set by the law of the subjects of the Russian Federation for municipal formations not only the plurality, but also proportional and mixed (proportional- plurality) system. The first constituent of the Russian Federation to implement the proportional electoral system at the municipal elections was the Krasnoyarsk Krai, where since 1996 in a number of cities a portion of deputies of the representative branches of the local governance is being elected according to the proportional system; and the first elections, where the mixed electoral system was used, took place in Krasnoyarsk on December 8, 1996 ^{[4, p. 95]}. Out of the 35 deputy mandates of the City Council, 18 were replaced based on the plurality system and 17 on the basis of proportional system.

But in the 1990’s the proportional electoral system at municipal elections did not gain wide notoriety. In our opinion, the limited proliferation of the proportional electoral system at municipal elections during that period took place due to several factors. Firstly, the implementation of proportional system was significantly hindered by the lack of developed party structures. As demonstrated by the experience of the Krasnoyarsk Krai, the number of electoral coalitions that introduces the lists of candidates for the branches of local governance often directly depend on the number of voters, or in other words, the size of municipality. It is largest in the regional centers, and minimal allowed in small cities. In addition to that, in the 1990’s, with absence of established “ruling party”, the only party electoral coalition that regularly introduced the list of candidates and overcame the barrier was often the Communist Party of the Russian Federation and its regional and local branches, which had to compete with the electoral districts created by the local ruling circles ^{[4, p. 97]}. Secondly, the list of possible systems that could be used at the local elections during that period was set by the legislation of the subjects of the Russian Federation, while a significant number of them simple did not provision for application of proportional electoral system.

At the dawn of the XXI century, due to stabilization of the political system, the federal legislator set course towards implementation of the proportional electoral system, which was previously broadly used only at the State Duma elections, across all levels of government power, including municipal elections. The substantiation for implementing the proportional system was the desire to encourage the development of political parties ^{[5, p. 106]}.

Elections using the system of proportional electoral system were broadly implemented throughout the Russian federation for the first time during 2009-2013. The peak of the implementation of the proportional system took place between 2011 and 2013, under the position of the Federal Law “On general principles of organization of local governance in the Russian Federation”, which made it mandatory to use the proportional electoral system for electing at least half of the deputies of the representative branch of municipal districts that had no less than 20 deputies. This position represented the realization of the President’s proposal, expressed in the Address to the Federal Assembly in 2010. It was believed that implementation of the proportional electoral system will contribute to formation of new legal conditions for a more active participation of political parties in the local elections, which would in turn contribute to the development of civil society in the nation.

But by the end of 2013, after the results of a number of elections based on the proportional system in large municipal districts with 20 or more deputies demonstrated high results among the oppositional parties, the position on mandatory elections of at least half of the deputies of the representative branch was stricken from the federal legislation. This was the cause for substantial weakening of the institutional role of the Russian political parties, and at the subsequent elections in 2014 there was a clear trend to reduce the portion of deputies in the subjects of the Russian Federation that were elected according to the party list ^{[6, p. 21]}. Thus at the representative elections in the large districts in September of 2017, out of 19 administrative centers of the subjects of the Russian Federation the mixed system remained in only 5 cities, while 14 regional centers completely abolished the proportional representation in 2014 ^{[8, p. 50]}. At the same time, in 2015 the wave of rejection of the proportional system on the local level has subsided ^{[6, p. 21]}. But unlike the previous practice, the correlation of the number of mandates allocated through the plurality and proportional systems at the elections became unequal. In 2015, approximately 25-30% of deputies were elected via the proportional system, while at the levels below regional center, the process of abolishing the elections by the party list continued ^{[6, p. 22]}.

Overall, we can say that the current situation with regards to the legislative base for application of the proportional representation on the local level testifies to the absence of conceptually defined approaches to this issue from the legislator.

Today, the proportional system can be used at the election of representative branch of municipalities only in the case that it is provisioned by the law of the subject of the Russian Federation and the bylaws of the municipality, but only where the population exceeds 3,000 people and at least 15 deputies in the representative branch. The municipal elections can implement a fully proportional system, or mixed-member representation (proportional- plurality) system. At the same time, in cases of application of proportional electoral system at the representative elections, it must allocate no less than 10 deputy mandates.

In majority of the subjects of the Russian Federation, at the local elections analogous to the Federal and Regional elections, a proportional electoral system with a sealed party list is used, which does not allow the voters to state their preference with regards to the included candidates. But the Republic of Mordovia, as well as Samara and Tver oblasts allow application of proportional system at municipal elections, or proportional- plurality system with open party lists.

The right to introduce lists of candidates at the municipal elections is given only to political parties, their regional branches, and other subdivisions that have the right to participate at the election of deputies of the representative branch as electoral associations. Public associations can take part in formation and introduction of candidate list at the municipal elections one within the framework of an agreement with a political party, executed for the purpose of joint formation of the candidate list. Independent introduction of candidates of introduction of candidate list by a group of voters is not permitted in the Russian Federation. However, a citizen that is not a member of a political party has the option to inquire with any political party and propose their inclusion onto the candidate list, and such proposal must be examined by an authorized department of the corresponding political party. But despite such clearly questionable guarantee, practical inability of citizens to independently and directly participate in elections conducted using the proportional system excludes the possibility to realize the passive electoral right of citizens who do not belong to a political party in cases when the elections of the entire representative branch of municipality are held according to the proportional representation system.

The introduced candidate lists, in cases provisioned by the law of the subject of the Russian Federation, can divide into territorial groups. The need to separate the list into territorial groups is provisioned in majority of the subjects of the Russian Federation. Moreover, the territorial groups of lists usually coincide with the boundaries of the territories of single mandate districts, formed for the purpose of holding an election using the plurality system ^{[7, p. 42]}.

Allowability of the application of proportional representation system at municipal elections in the decisions of the Constitutional Court of the Russian Federation

The application of proportional representation system on the local level is the subject of an acute discussion within the scientific society, which is characterized by a certain “dispersion” of opinions ^{[11, p. 33-58]}. A number of the researchers have a negative attitude towards the extensive application of proportional electoral system on the local level, because in their opinion, the local self-governance must ensure the interests and demands of the citizens that are least connected with politics (residence, utilities, public transportation, amenities), but rather directly impact the life of the local communities ^[2,3]. Due to the fact that the Constitution of the Russian Federation, as well as the Federal Law “On general principles of organization of local governance in the Russian Federation”, consider the population of municipal institutions and local authorities as the subject of local self-governance, the participation of any other subjects underived from the population of municipal institution in its realization is unnecessary.

The supporters of the aforementioned position justly underline a number of flaws common to the Russian model of application of the proportional electoral system on the local level. Thus, with almost nationwide use of the system of sealed candidate list, the ways of influence of the voters upon the personal composition of the representative body appear to be quite limited. The proportional electoral system virtually excludes the possibility of the recall of a deputy elected by the party list, due to the very essence of the proportional mandate awarded to the collective constituency, rather than a specific candidate. Holding the municipal elections exclusively based on the proportional system in the conditions established by the current model of legal regulation, also creates certain obstacles for citizens who do not belong to political parties; or the parties they belong to decided not to take part in election in the specific municipal institution, because in such case even hypothetically they cannot be proposed by another political party.

Analysis of the popular within the scientific society positions regarding the conceptual allowability of application of the proportional representation system on the local level went far beyond the framework of this article due to its scale. Therefore, we will examine the second group of issues, which in many ways does not carry a conceptual character, but is associated with the precise peculiarities of implementation of the legal mechanism of application of the proportional electoral system at municipal elections. In our opinion, the indicated problems can be eliminated without rejection of the proportional representation system, especially considering the fact that some of them found reflection in the legal positions of the Constitutional Court of the Russian Federation.

The main legal positions of the Constitutional Court of the Russian Federation on the question of application of the proportional electoral system at municipal elections found reflection in the Decree from July 7, 2011 No. 15-P on the issue of verification of the constitutionality of positions of Part 3 of the Article 23 of the Federal Law “On general principles of organization of local governance in the Russian Federation”, as well as Parts 2 and 3 of the Article 5 of Chelyabinsk Oblast Law “On Municipal Elections in Chelyabinsk Oblast”, due to complaints of the Commissioner for Human Rights of the Russian Federation and citizens I. I. Boltushenko and Y. A Gurman.

This Decree became the reaction to the situation, which emerged during the 2009 election in the town of Khomutinino of Uvelsky Ditrict of Chelyabinsk Oblast. The Chelyabinsk Oblast Law from June 29, 2006 No. 36-ZO “On Municipal Elections of Chelyabinsk Oblast” determined that on the elections of representative bodies of municipal institutions can be used either the plurality, or proportional, or mixed electoral system. At the same time, the right of choosing a specific type of electoral system was given to the municipal institutions themselves.

In accordance with the previously mentioned law, in the town of Khomutinino, the proportional electoral system was established for the purpose of formation of the local Council of Deputies. The citizens I. I. Boltushenko and Y. A. Gurman attempted to run as self-nominated candidates, but received a legitimate refusal in registration as candidates, confirmed by the Uvelsky District Court and Chelyabinsk Regional Court.

As a result, in their complaint to the Constitutional Court of the Russian Federation, the applicants stated that holding the indicated elections based on the proportional electoral system did not allow citizens who do not belong to political parties or support the proposed lists of candidates to directly realize their right to vote and to be elected through participation in nomination of candidates, as well as voting for them. Therefore, in their opinion, the disputed positions, making the realization of citizens’ right to be elected into the representative body of municipal institution and support of the citizen’s candidacy by one or another political party interdependent, distorted the concept of the local self-governance.

Examining the question of allowability of application of the proportional representation system at the elections into the representative bodies of municipal institutions, the Constitutional Court noted that the citizens’ right to vote and to be elected into the local government is a necessary component of the constitutional legal status of a citizen; it is also called to guarantee an opportunity to participate in realization of local self-governance to each citizen, either directly or through their representatives. Legal regulation of the question pertaining to the choice of electoral system must adequately ensure the legitimacy of the bodies of public authority, as well as do not allow the distortion of the results of the will of the voters.

At the same time, in determination of the specific way and conditions for realization of the right to vote and to be elected, the legislator has an extensive discretion that allows considering the historical circumstances, peculiarities of the country’s sociopolitical development, which in turn, directly affect the decision-making process about the use of the proportional, plurality, or mixed electoral system at the particular elections.

Thus, based on the logic of the examined Decree, the legislator’s choice of electoral system for formation of the bodies of public authority can be limited only by the need of ensuring the valid guarantees to participants of the elections for implementation of active and passive electoral law; as well as inadmissibility of their unsubstantiated discrimination and distortion of the results of the expression of will. However, with regards to legal regulation of the types of electoral systems applied on the local level, the Constitutional Court amended the previously mentioned guarantees by the necessity of correlation of the applied on the local level electoral system with the constitutional nature of the local self-governance as a level of public authority that is closest to the community.

The Constitutional Court ruled that the choice of proportional representation system for establishment of the collegiate bodies of local self-governance do not testify to the departure from the principles of the universal, equal, and direct suffrage by secret ballot, or contradict the Constitution of the Russian Federation. The possibility of participation of political parties in realization of local self-governance as an essential institution of representative democracy, the work of which is directly associated with organization and functionality of public authority, and ensuring the citizens’ participation in political life of the society, also corresponds with the Constitution.

In doing so, the Constitutional Court allowed the application of proportional electoral system on the level of local self-governance. But the Court also turned attention to a number of peculiarities in realization of public authority on the local level, which must be considered by the legislator in choosing the electoral system, namely during the implementation of proportional electoral system at the elections in small municipal institutions.

Thus, the Constitutional Court notes that the local self-governance, in comparison with other levels of public authority, opens broader opportunities for application of the forms of direct democracy. The direct participation of population in electoral process manifests not only in voting, but also in nominating the deputy candidates by a large circle of actors of the electoral process, usually represented by the functioning within the framework of local community public organizations, professional groups, and individual citizens. Consequently, communication

between the deputies of representative bodies of municipal institutions and voted for them citizens is closer, than on other levels of public authority.

The implementation of proportional representation system under such circumstances must relate to the presence on the local level of certain elements of “infrastructure” of civil society; for example, a sufficient amount of local divisions of political parties, as well as opportunity for participation in the elections of public organizations, because the candidates included into the party lists cannot express the entire range of interests of the local community. In other words, the application of proportional electoral system in its specific variant must guarantee the fuller and more adequate expression of the interest of social groups that comprise the local community.

But the Russian model of application of the proportional electoral system on the local level in the form that it existed at the time of the Decree and continues to exist today does not allow the possibility for guarantees for the local communities that is emphasized by the Constitutional Court, and does not make the resolution of the issue of application of proportional electoral system in cities depend on these guarantees. Given the political parties the exclusive right to introduce candidate lists; lack of ability of citizens of municipalities to directly realize their Constitutional right to be elected into the branches of local government; reduction of the Constitutionally established power of the citizens of municipalities to a mere ability to elect officials every four-five years, while turning these elections into “the only dimension of municipal democracy”, does not currently provide the ability to hold elections by proportional electoral system into the representative branches of towns with small population and number of deputies ^{[9, p. 62]}.

The latter circumstance also plays a big part in the assessment of the Constitutional application of the proportional electoral system on the local level. As noted by Vladimir Churov, Maya Grishina, and Yelena Chernova, application of the proportional system in cases of low number of allocated deputy mandates does not exclude the possibility of receiving equal number of seats in the representative branch by the electoral associations, whose lists received significantly different number of votes. Moreover, in the situations where a significant number of electoral associations take part in the municipal elections, the use of proportional electoral system with a low number of seats can make determining the results of the elections all but impossible ^{[10, p. 116-118]}.

According to the Constitutional Court, in such circumstances legalizing only the proportional electoral system in its current parameters for the elections of the representative branches of local governance would prevent achieving the balance of local and national interest, since participation of decision-making of the representative branches on the issues of local importance in towns only by representatives of federal political parties would be an unjustified centralization of local administration through the party structures, which would contradict the Constitutional essence of local governance. At the same time, the Constitutional Court does not make decisive conclusions on the inability to apply proportional electoral system is small towns, linking this issue to the correspondence of a specific type of proportional system with the requirements, which the Court established as mandatory for use of such type of electoral systems on the local level.

Thus, summarizing the formulated by the Constitutional Court of the Russian Federation legal positions that determine the conditions of allowability of application of the proportional electoral system on the local level, we should note that application of a specific variety of proportional system electoral at the municipal elections must ensure the more complete and adequate to the actual preferences of the voters expression of interests of the social groups, which comprise the local community. In such case, the right to propose the lists of candidates should be awarded to not only the political parties, but also public organization, and possibly the groups of voters. The selected model of application of the proportional representation system must exclude the likelihood of distortion of the results of the will of the voters in distribution of a small amount of mandates.

Proportional electoral system as a means of reflection of interests of the local community

Another question that we believe should be noticed is the influence of the chosen type of electoral system upon its results. It is a known fact that both, the plurality and the proportional electoral system have their benefits and flaws, most of which are commonly recognized. It is also believed that one of the means that allows mitigating the negative consequences of application of the plurality or the proportional system in their pure form is the use of the mixed-representation system. But a simple combination of two electoral systems in the form that is allowed by the legislation of the Russian Federation often leads to the fact that not only the negative sides of the electoral systems are not being mitigated, but the contrary, worsening of the negative effects, leading to substantial deformation of the voting results.

Let us examine this situation on the example of the mixed (proportional- plurality) electoral system at the elections of the representative branch on the local level, called upon to guarantee the ability to realize the right to elect and be elected for the citizens who do not belong to a political party.

Let us note that according to the legal position of the Constitutional Court of the Russian Federation, expressed in the decisions from February 4, 2014 No. 218-O and from February 9, 2016 No. 337-O, as well as the ruling from July 7, 2011 No. 15-P, the electoral procedures used at municipal elections must ensure – with adherence to the principle of legal equality – the adequate expression and full consideration of the will of the people of the municipality. It would seem that the under the full consideration of the will of the people we should understand the correspondence of the results of the elections (i.e. spread of the deputy mandates), expressed in the course of voting, to the preference of the voters, including preference with regards to political parties. Since we are talking about the will of the people, in determining it we should consider not the results of the elections as established by a particular electoral system, but the actual results of the voting in their absolute expression.

As a key example, let us examine the situation that has transpired at the City Duma elections in the city of Dimitrovgrad of Ulyanovsk Oblast of the second convocation in 2013. The City Duma of Dimitrovgrad consists of 30 deputies, half of whom was elected in 2013 by single-seat districts, while the other was elected according to the party lists introduced in the general city-wide electoral district. The candidate lists were introduced by five political parties (United Russia, Communist Party of the Russian Federation, Liberal Democratic Party of Russia, A Just Russia, and Civic Platform). They are the ones who introduced various number of candidates in single-seat districts (here and hereafter, all date is from the State Automated System “Elections” – V. D.). According to the elections by unified electoral district, the list of “United Russia” received 10,117 votes, which is 39.97% of total number of votes, Communist Party of the Russian Federation received 7,655 votes (29.49%), A Just Russia received 2,682 votes (10.33%),

Liberal Democratic Party of Russia received 2,280 votes (8.78%), and Civic Platform received 2,165 votes (8.34%). However, the results of the elections, received from the unlinked application of plurality and proportional electoral systems, drastically differ from the voting results. The “United Russia” ended up receiving 20 deputy mandates (14 by the single-seat districts and 6 by the party list), which equals 66.7% from the total number of mandates, Communist Party of the Russian Federation received 5 deputy mandates (4 by party list, and 1 by single-seat district), which equals 16.7%, A Just Russia received 2 mandates (both by party list, 6.7% of total number of mandates), Liberal Democratic Party of Russia received 1 mandate (by party list, 3.3%), and Civic Platform also received 1 mandate. Thus, the political party that did not receive even half of the overall voted received 2/3 of the seats, which secured it full control over the City Duma. It seems rather doubtful that such results of the elections can be considered to be an adequate expression and means of the fullest consideration of the will of the people of the municipality.

Let us note that similar situation is not uncommon for Russian municipal elections. It emerges practically wherever the mixed unlinked electoral system is used. For example, at the local City Duma election in Tolyatti of the sixth convocation on September 8, 2013, the “United Russia” party received 51.67% of the votes, Communist Party of the Russian Federation received 15.99%, A Just Russia received 5.29%, Liberal Democratic Party of Russia received 5.56%, and Civic Platform received 8.78%. The rest of the parties did not meet the minimum required 5% of votes. But as the result of the elections, the “United Russia” party received 29 mandates (82.8% of the total seats), Communist Party of the Russian Federation received 3 mandates (8.6%); Liberal Democratic Party of Russia, A Just Russia and Civic Platform received 1 deputy mandate each, while the latter

received almost 2% more votes than the LDPR or JR. At the City Duma elections of Izhevsk of sixth convocation, the “United Russia” party received 53.19% of the votes, Communist Party of the Russian Federation 16.37%, Liberal Democratic Party of Russia 8.8%, and Patriots of Russia 6.73%. The rest of the parties did not meet the minimum required 5% of votes. The actual allocation of mandates was similar to the aforementioned cases. Out of 42 mandates, the “United Russia” received 32 (76.2%), Communist Party of the Russian Federation 4 мандатес (9.5%), Liberal Democratic Party of Russia and Patriots of Russia received 2 mandates each (4.7%).

In our opinion, these examples clearly demonstrate the dependency of the results upon the selection of the electoral system. Application of the proportional-plurality electoral system represents the true guarantee for non-party citizens to participate in the elections, removing the key flaw of the proportional electoral system. But at the same time, the mechanical fusion of proportional and plurality system in the conditions when majority of the candidates are endorsed by political parties substantially tilts the results of the public will towards the strongest party, and the main factor of the risk of such tilt is the presence of single-seat deputies in the representative branch, who are elected according to the plurality system of relative majority.

We believe that the flaws emerging in the elections by plurality system of relative majority and mixed (proportional-plurality) unlinked electoral system can be overcome by widespread implementation of proportional electoral system, adapted for use on the local level with consideration of the legal positions of the Constitutional Court of the Russian Federation.