On July 11, 2019, the Ukrainian Parliament, the Verkhovna Rada, adopted into law the draft election code that passed in its first reading in November 2017. The election code was adopted in violation of the Parliament’s Rules of Procedure: Speaker Parubiy put amendments up to vote for consideration 17 times, and 16 times these amendments failed to receive the 226 votes needed. Only during the 17th attempt was the vote successful - the code with all the amendments was finally supported by 230 MP votes and voted into law. The Rules of Procedure make it clear that if amendments to a draft law fail to receive 226 MP votes, the amendments are considered rejected. Notably, procedural violations were among the reasons the Constitutional Court of Ukraine recognized the 2012 National Referendum Law as unconstitutional in April 2018. Violation of the Rules of Procedure could serve as grounds for striking down the adopted code as well, should the President, Ombudsman or any 45 MPs elected in July 2019 decide to question its constitutionality with the Constitutional Court.
To be enacted, the code needs to be signed and promulgated by the President. Even if promulgated, the code would only enter legal force on December 1, 2023. Therefore, it would not apply to the 2020 local elections or to potential early parliamentary elections should the new parliament be dissolved by President. The 2011 parliamentary election law would also still be the legislation that is applied if there are any by-elections during the term of the new parliament after 2019, should any vacant seats need to be filled. The fact that the code does not come into legal force until 2023 does not exclude the possibility of its repeal by the next Rada (particularly if newly seated MPs use the argument that the adoption of the code was a part of pre-election campaign by the “old politicians”). The next parliament could also introduce significant changes to the code. Lastly, the possibility of the court recognizing the code as unconstitutional should also not be underestimated.
There are significant doubts raised by the adoption process in terms of its transparency, inclusiveness and legitimacy. The incumbent MPs have repeatedly failed to introduce any significant electoral reforms since 2014. These MPs only decided to make a move to adopt the code and enact electoral reform less than two weeks before the July 21 elections. It is questionable, therefore, whether the intent to vote for the code was meaningful or if it was driven by election campaign-related considerations. None of the hundreds of amendments to the code proposed by the Working Group established in 2018 under the Parliamentary Committee on Legal Policy and Judiciary were considered separately by the Rada; instead, based on Speaker Parubiy’s suggestion, MPs voted for all amendments in a “package.” It is unclear from the Speaker’s suggestion what is contained in this “package.” The inclusivity and transparency of which amendments were considered by the Working Group itself is questionable. Working Group meetings were attended by a few MPs and many of the amendments proposed by civil society (in particular amendments related to the enfranchisement of the internally displaced and the effectiveness of the proposed gender quota) have not been supported by the Working Group. Domestic experts also raise concerns about whether the MPs who voted for the code are indeed familiar with the specificities of the proposed open-list system in the code and the suggested election procedures.
The draft election code (as amended after the first reading in May 2019 by the Working Group) contains some improvements over the current election laws. It harmonizes and more thoroughly regulates the operation of the election commissions in all elections and specifies the procedures for vote counting, vote tabulation, and establishing election results to reduce the risk of fraud. It also improves the accessibility of elections to people with disabilities. In addition, it provides a clearer delineation between election campaigning and media coverage of the election, as has been recommended by ODIHR. It introduces a gender quota that requires that at least two candidates in each group of five on party lists be women and envisages failure to comply with the quota requirement as a reason to reject a party list from participation.
However, the code also contains serious flaws that have yet to be addressed. The open-list proportional system suggested provides that the allocation of seats to election districts is based on turnout rather than the number of registered voters or population figures. It also lacks instruments to enfranchise the internally displaced and other mobile populations, and does not include a mechanism to professionalize lower-level election commissioners, such as mandatory training for all commissioners. While IFES and its civil society partners have proposed and advocated for amending the draft code to address these flaws, they have largely been ignored. Therefore, the code represents clear improvements in certain areas but still contains a number of flaws that need to be further discussed with all stakeholders and properly addressed by the next parliament.