Legal nature of an election commission working group

A.V.Szydlowski

Abstract

This paper is the first attempt at a comprehensive study of the phenomenon known as "election commission working group" and its legal nature in the context of the Russian Federation. The author concludes that the phenomenon's theoretical aspects have yet to be studied from both positive and natural law standpoints. However, the theoretical aspect of a working group's practices regarding the receipt and processing of electoral documents is subject to the applied aspect and is intended to supply the electoral process with necessary tools. This, in turn, creates problems for the applied aspects of elections in the country, which are particularly relevant considering the empirical material of the 2020 election campaign. Further issues arise when it comes to providing a proper decision-making mechanism to an electoral commission as well as to making sure that citizens are able to practice their passive suffrage. That said, the first of the outlined issues mediates the second, since when there is failure in providing the proper decision-making mechanism to an electoral commission, the validity of its decisions becomes questionable.


Introduction

In the current context, creating working groups to solve specialized tasks that arise in various categories of social relations has become fairly common. Social relations that develop through elections of various levels are no exception.

In the 2020 electoral cycle, Russian courts encountered the phenomenon of a working group tasked with accepting and revieweing election commission documentation. A working group for candidate documentation submission and verification is a mechanism created to serve a general purpose – accepting documents filed by candidates (both independent and party-affiliated) and verifying them for compliance with the requirements of Russian legislation. Such working group may also be tasked with developing draft resolutions (as well as other documents) for election commissions if the rules of procedure for a certain working group provide for it.

Working groups for candidate documentation submission and verification were created in order to improve the efficiency of election commissions when it comes to making decisions on whether participation of a certain subject of electoral process is legal or illegal, and whether the subject qualifies for further participation in the trials (elections). Although the phenomenon of such working groups has been known to Russian electoral law, their activities lack legislative regulation. Moreover, theoretical aspects of the phenomenon have not yet been studied.

In their turn, all of the aforementioned factors create problems for applied aspects of elections in the country. In the context of this paper, such aspects as providing a proper decision-making mechanism to election commissions as well as ensuring passive suffrage of citizens seem particularly relevant. That said, the first of the outlined issues seems to mediate the second, as when there is failure in providing the proper decision-making mechanism to an electoral commission, the validity of its decisions becomes questionable.

Theoretical aspects of the activities of working groups for candidate documentation submission and verification

In the context of this paper, the theoretical aspects should be considered from both positive and natural law standpoints. This may be explained by the fact that the positivist approach (that is, an approach based solely on the analysis of existing legal grounds for the performance of working groups) does not give a complete picture of the working group for candidate documentation submission and verification as an electoral process phenomenon, as well as of the significance of said phenomenon for the applied aspects of elections in the country.

From the point of view of positivism, law is synonymous with positive norms [3: 5-7]. Therefore, the performance of certain subjects of social relations has a legal basis only when it is backed by law. Anything outside the law is meaningless. Let us apply this idea to activities that working groups for candidate documentation submission and verification are involved in.

The legal rationale for activities of working groups for candidate documentation submission and verification includes a whole set of both regulatory and regulatory legal acts. These acts include such federal laws as "On Basic Guarantees of Suffrage and the Right to Participate in Referendums of Citizens of Russian Federation", "On Elections of Deputies to the State Duma of the Federal Assembly of the Russian Federation", "On Personal Data", "On the State Automated System of the Russian Federation 'Vybory'". These acts also include other federal laws that regulate the exercising of electoral law, including resolutions of the Central Election Commission of the Russian Federation (the CEC of Russia) and other regulatory acts of the CEC of Russia, as well as regulatory acts of the federal subjects so far as they do not contradict the federal legislation and concern issues within their purview.

This is a direct inference from numerous regulations (model regulations) on working groups for candidate documentation submission and verification that concern the process of accepting and reviewing documents submitted by candidates to different election commissions [6; 5; 7] approved by the CEC of Russia. Said regulations also define the tasks and functions performed by working groups to carry out the corresponding tasks. As we have pointed out before, the main tasks performed by working groups for candidate documentation submission and verification include accepting documents submitted by candidates (both independent and party-affiliated), verifying them for compliance with the requirements of Russian legislation, verifying signature lists as well as (if the rules of procedure for a certain working group provide for it) inspecting draft resolutions (as well as other documents) for election commissions.

Therefore, it is obvious that the theoretical aspect of a working group's practices regarding the receipt and processing of electoral documents is subject to the applied aspect and is intended to supply the electoral process with necessary tools. In other words, working group for candidate documentation submission and verification are a mechanism that ensures that the documents submitted to the election commission go through a proper review process, and that the election commission makes competent decisions as a result. In this case, members of election commissions who are not part of the working group should put their trust in and rely on the working group, which in its turn is responsible for verifying the accuracy of the information provided by the candidate and makes the final decision.

Despite the importance of the procedural theoretical aspects of the activities of working group for candidate documentation submission and verification, it is necessary to note the importance of the substantive aspects of the activities of such working groups. Like any other universal mechanism, a working group for candidate documentation submission and verification may become a tool that is used for harm. The substance of the phenomenon under consideration can be revealed only through the natural and legal consideration of its essence, which we will provide below.

There is a wide-spread hypothesis in the academic literature [10; 11] that electoral law is a genetic offspring of jus ad bellum (the law of war), which split into humanitarian law (if a peaceful resolution of a political conflict is impossible) and electoral law and the right to referendum (when a political conflict is resolved through non-violent means). According to this hypothesis, from the point of view of natural law and the doctrine of the law of necessity, the electoral process is nothing more than an ordeal, in which the electoral commission (collegial body) takes on the procedural role of the court, and the members of the electoral commission are election judges endowed with both their own discretionary powers and procedural status, which is different at different stages of the electoral process. An analysis of modern world legal practice and legislation reveals that a United States coroner is the closest representation. The coroner is an elected official who examines the reasons for a person's death (whether it resulted from a crime or not) through a certain procedure. In a very general way, a coroner can be described as a combination of a doctor and a lawyer who at various stages acts as a forensics expert when examining the circumstances of a person's death. If necessary, a coroner can conduct a preliminary investigation as an investigator. Ultimately, a coroner procedurally becomes a judge in a jury (small jury). The exclusive competence of the coroner's jury includes only the issuance of a verdict on the criminal nature of death or lack thereof. If the jury concludes that death occurred naturally, the coroner will issue an appropriate verdict and close the case. If the jury comes to the conclusion that there is a criminal component in the case, then the coroner transfers the case for further investigation under jurisdiction [9].

Following the logic of this hypothesis, one can draw an analogy between the coroner's court (small jury) and the court of general jurisdiction (grand jury) on the one hand, and the working group of the election commission and a full election commission on the other. Given that the status of an electoral commission member in many jurisdictions (including the United States) is the status of an election judge, the status of an electoral commission member in a working group is similar to that of a coroner, whereas a working group member who is not a member of an electoral commission is akin to a juror on a small jury. It is logical to assume that at the stage of verifying documents and voter signatures, the main goal of a working group is similar to that of the coroner, which is to determine whether the participation of a specific subject of electoral process is of “criminal” or “non-criminal” nature (as in whether the subject's participation is legal or illegal). Once the nature has been determined, a corresponding legal decision is made. Historically, the coroner (literally the representative of the Crown/sovereign) is a person whose task is to determine whether a death of a person violates the rights of the Crown. It may also be a working group (a group of coroners), whose task is to find out whether the participation of a political subject in the electoral process violates the rights of the people (the modern sovereign).

It is therefore obvious that the legal structure, which implies that a working group should be created, is objectively determined by the nature of the existing goals and objectives (to represent the interests of the sovereign and make a legal decision) and does not depend on the will of specific subjects of neither electoral process nor political activity. Differences in the number of members of an election commission working group can only be caused by the scope of its activity, but cannot be completely nonexistent.

A similar conclusion can be reached when analyzing not only the modern Anglo-Saxon legal system, but also the continental one. We must recognize the act of empowering an independent (or interdependent) party to make an independent judgment on the legality of the grounds as a historical and legal fact as well as a great historical event, and not just as a logical legal mechanic, regardless of the real situation that accompanies the historical process in terms of localization and scale. The emergence of an objective opinion (in relation to opposing groups of people) gave rise to a primary legal basis ("radical title") in the full sense of the concept. If we paraphrase Greek philosophers, electoral law is powered by this source. In terms of this past context, the source is the law of nations ("jus gentium"). The correct historical understanding of Roman law shows that it distinguished between the legitimate opponent of the enemy ("hostis") and the criminal (illegal enemy). For example, the Digest of Pomponius state that "Enemies are those whom we publicly agitate with content, or who publicly agitate us with the same thing; the rest are thieves, bandits and robbers." Therefore, the ability to recognize a legitimate opponent – a worthy enemy ("justus hostis") – is the primary legal basis. The Digest of Ulpian states a more specific rule that only those who were officially named enemies can be declared as such. Therefore, the modern electoral and legal meaning of the above-mentioned norms of Roman law is the following: legal political opponents are only those groups of people who were named as such by law [12]. Although a deeper analysis of the legal basis is beyond the scope of this paper, the author would like to point out that such norms are not isolated cases and were described in other sources, such as Dar al-Islam as opposed to Dar al-Harb in Islamic law, etc. Consequently, as a formalized form of law, the function of determining the legal status of an opponent existed in the pre-globalized world, which was still mythologically defined, and is both natural and legal in nature.

In the current context, the function of determining the legal status of an opponent in the modern electoral process is actually entrusted to the working group for candidate documentation submission and verification. The main task of this working group is to determine whether participation of a certain subject of electoral process is legal or illegal and to make a legally relevant decision. Based on this decision (ordeal, from the point of view of history of jurisprudence), an election manager makes a legal decision on admitting a candidate to trials (elections). This directly points to the fact that a working group has its roots in both natural law and regular law, which, in their turn, stem from the natural and legal foundations of the Doctrine of Necessity described by Henry de Bracton [1]. The Doctrine of Necessity has a stronger legal force as compared to the Doctrine of Right described by Immanuel Kant [2].

Practical aspects of the activities of working groups for candidate documentation submission and verification

In the context of this article, the issues of ensuring a proper decision-making mechanism for the election commission are particularly relevant, as well as ensuring that passive suffrage can be exercised. That said, the first of the outlined issues seems to mediate the second, as when there is failure in providing the proper decision-making mechanism to an electoral commission, the validity of its decisions becomes questionable. The author of this paper believes that such problems were first identified in the 2020 electoral cycle, when the courts of several levels came to the erroneous opinion that the incompetent work performed by a working group for candidate documentation submission and verification is inconsequential for the final decision made by an election commission. It seems that court decisions were prompted by a lack of understanding of the nature of a working group for candidate documentation submission and verification as a phenomenon.

Analyzing the theoretical aspects of the activities of working groups for candidate documentation submission and verification showed that they were created to ensure that candidates comply with the requirements of electoral legislation through a more detailed verification process of documents submitted by candidates (including voter signatures). At the same time, as we pointed out earlier, members of election commissions who are not part of the working group trust the working group and vote for the decision proposed by the latter without much consideration. That is, an electoral commission fully trusts the working group that operates within its corresponding framework. Stepping outside of said framework should bear legal consequences.

Let us take a look at some experiential cases. An inspection carried out by the working group for candidate documentation submission and verification in the election to Belgorod Oblast Duma of the seventh convocation revealed 9.5% invalid signatures in signature lists filed by Novye Lyudi ("New People") party regional office. Following the inspection, Belgorod Oblast Election Commission issued a resolution to deny registration in the elections to Novye Lyudi candidates.

Novye Lyudi party challenged this decision in a judicial procedure. In its administrative claim, the party stated that the meetings of the working group were ineligible due to the lack of quorum it was obligated to ensure under Clause 3.5 of the "Regulation on Working Group for Candidate Documentation Submission and Verification Regarding the Documents Submitted by Authorized Representatives of Parties to Belgorod Oblast Election Commission During the Election to Belgorod Oblast Duma of the Seventh Convocation" (Appendix No. 2 to the Resolution of Belgorod Oblast Election Commission of 5 March 2020 No. 116/1051-6) (Working Group Regulation). According to the said clause of the Working Group Regulation, a meeting of the working group is considered eligible only if more than half of the designated members of the working group are present. In the case under consideration, the meeting was held in the presence of four members of the working group out of eight (meaning exactly half of the designated members), thus violating the clause of the Regulation.

However, court of the first instance and the court of appeal did not agree with the arguments presented by Novye Lyudi party. The statement of reason claimed that the Working Group Regulation and the resolution of the Election Commission of 5 March 2020 No. 116/1051-6 [4] that ratified it lack all the required characteristics of a regulatory legal act that would classify them as part of the electoral legislation of the Russian Federation (Clause 2 of the Resolution of the Supreme Court Plenum od 25 December 2018 No. 50 "On Practice in Proceedings Concerning Case-Handling on Court Action Against Regulatory Legal Acts and Acts Clarifying the Legislation and Possessing Regulatory Properties" [8]). Independently and without establishing the grounds (stipulated in Clause 5 Article 75, Clause 6 Article 76 of the Federal Law No. 67-FZ, Section 6 Article 114 of the Belgorod Oblast Electoral Code) for repealing the contested resolution, the shortcomings in managing the proceedings of the working group pointed out by the administrative plaintiff (lack of quorum under Clause 3.5 of the Working Group Regulation) do not entail eliminating signature list verification from the final protocol substantiation and recognizing the contested resolution as illegal. By virtue of the law, the issue of registration or refusal thereof to a list rests exclusively with the Election Commission. At the same time, it is subject to discussion and settlement at a Commission meeting, where all the required documents, including those received from the working group, are examined, and the settling this issue does not imply the Commission will unconditionally adopt the draft resolution prepared by the working group as the foundation of said issue. The court of appeal corresponded to such conclusions made by the court of first instance, leaving the claim unsettled.

In other words, court findings boil down to the fact that the activities of the working group for candidate documentation submission and verification are not defined by the relevant regulatory legal acts that are part of electoral legislation. Therefore, the election commission has the right to make independent decisions on whether to register candidates or not, without focusing on the working group's final opinion. That said, the lack of competence of the working group to make this or that decision does not affect the legality of the decisions made by the election commission.

In our opinion, the conclusions of the law enforcement authorities are misguided, as the courts have incorrectly assessed the legal proposition of the party on the legal nature of the election commission working group, having made a misguided conclusion that the working group as such is not an obligatory element of the electoral process and/or an electoral management agency. For this reason, the evidence produced by the election commission that serves as its decision-making basis cannot be recognized as irrelevant or inadmissible, depending on the legality of its meetings.

If the election commission working group in itself had not been an obligatory element of the electoral process and/or an electoral management agency, then it would not have been entrusted with the task of accepting documents submitted by candidates (both independent and party-affiliated), nor would it be entrusted with verifying that these documents comply with the requirements of Russian legislation, with verifying voter signature lists, as well as (if the rules of procedure for a certain working group provide for it) inspecting draft resolutions (as well as other documents) for election commissions.

Formally, the norms of Russian electoral legislation do not really stipulate that voter signature lists be verified directly by the election commission working group, since such a working group may not be created at all, or the working group regulation may fail to provide for authorization to verify filled-in voter signature lists. In such cases, however, election commission still directly checks the authenticity of signature lists. Otherwise, the case is that no one is responsible for verifying signature lists. That is why it is essential that the working group operates within a certain framework, and failure to remain within the framework should bear legal consequences, as in such a case an electoral commission lacks a proper decision-making mechanism and the validity of its decisions is therefore questionable.

In this particular case of law enforcement practice, the courts failed to take the above-mentioned features of the electoral legislation into account. If the working group was created and tasked with verifying signature lists, it means that the members of the election commission relied on verification results when making the final decision. Therefore, the working group should have bore legal consequences for violating the final decision-making procedure on signature list verification, as these procedural violations prevented citizens (candidates) from properly exercising their passive suffrage. However, the courts did not take the latter fact into account when making their decisions. At the same time, the only thing that the courts focused on was the status of such an act as the Working Group Regulation.

Conclusion

Determining the legal nature of the working group for candidate documentation submission and verification allows us to conclude that in the current context, such working groups are created to cater to the need of increasing the efficiency of election commissions when it comes to making decisions on whether participation of a certain subject of electoral process is legal or illegal, and whether the subject qualifies for further participation in the trials (elections).

The legal nature of the working group for candidate documentation submission and verification is both natural and legal, arising from the Doctrine of Necessity, which is also natural and legal by nature. Therefore, legally significant decisions of the working group are the basis for an election manager to make legal decisions on admitting candidates to elections (trials, ordeals), but are not determined by it. However, these theoretical aspects of such a phenomenon as the working group for candidate documentation submission and verification have received little research coverage. This, in turn, creates problems for the applied aspects of the electoral process in the Russian Federation, where a de jure unauthorized decision should bear matching legal consequences, since procedural violations during signature list verification made it impossible for citizens (candidates) to properly exercise their passive suffrage. De facto, however, the lack of competence of the working group to make this or that decision does not affect the legality of the decisions made by the election commission.

Received 28.10.2020, revision received 17.11.2020.


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