The 1990s: The High Noon of Russia's Electoral Legislation

Buzin A.Yu.

Abstract

One can sometimes hear the opinion that post-Soviet Russia has never had a real election. This is a profound misconception, and the only people who can say this are either those who do not remember the explosive development of the institution of Russian elections in the 1990s or those who mindlessly believe modern Russian propaganda that is pushing the narrative of how the "roaring nineties" were a national catastrophe. In the meantime, during the 1990s Russia struggled to break through the darkness of totalitarianism and an inefficient economy into a civilized democratic society. Free elections are one of the elements of such a society. One had to realize that what were called elections in the USSR were not elections at all, but a democratic spectacle that was deliberately mislabeled. A completely different electoral legislation should have been created, as well as the mechanisms that would allow this legislation to be implemented. The first objective was completed, and Viktor Sheinis played no small part in doing so. The second objective, alas, remained incomplete, which resulted in a backwards shift from elections to spectacle. The paper covers the development of the Russian electoral legislation in the second half of the 1990s, during the deputy years of Viktor Sheinis and his role as one of the developers of this legislation. The author considers the innovations of electoral legislation that concern the organization of the electoral process and election organizers, nomination and registration of candidates, campaigning, voting and vote counting. These innovations were introduced in the laws of 1997–1999 and brought the Russian electoral legislation to the level of international electoral standards.

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Introduction

The history of Russian electoral legislation is filled with drama. Viktor Sheinis, who described "The Rise and Fall of the Parliament" [14], could well have penned another study, namely, "The Rise and Fall of Russian Electoral Legislation", since he was directly involved in the rise of this legislation and watched its fall with his own eyes.

This piece will focus on how Russian electoral legislation gained strength, how it almost reached the level of international electoral standards, and why it failed to guarantee real elections, declared by the Russian Constitution as "the highest direct expression of the power of the people". The Federal Law "On Basic Guarantees of Electoral Rights and the Right to Participate in Referendums of Citizens of Russian Federation" (hereinafter we will refer to it simply as the Law on Basic Guarantees) was adopted in 1997, during the term of office of the State Duma of the second convocation. In fact, this law turned out to be the pinnacle of the development of the electoral legislation; it passed all its main features to the next version, adopted in 2002 and later mutilated beyond recognition. The above-mentioned 1997 law was used as a basis for the adoption of new laws "On Elections of Deputies to the State Duma of the Federal Assembly of the Russian Federation" and "On the Election of the President of the Russian Federation".

The laws of 1997–1999

In the second convocation of the State Duma, Viktor Sheinis Viktor Sheinis was a member of the State Duma Committee on Legislation, Judicial and Legal Reform. His associates were Oleg Kayunov and Vladislav Lutsenko (I worked with all three for some time in the 2000s). I think it was these three that made the most important contribution to the creation of the 1997 law. Although this law did not come out of thin air and was conceptually based on the innovative provisions of the 1993 presidential decrees on elections and the preceding 1994 Federal Law "On Basic Guarantees of Voting Rights of Citizens of the Russian Federation", it considerably elaborated and expanded the guarantees of electoral rights.

The State Duma of the second convocation, elected in 1995, was fundamentally different from the current ornamental Duma. It was a space for discussion, and there were discussions not only between the different factions, but also between the deputies and the Government. The 1997–1999 laws were passed as a result of heated discussion. At the same time, Viktor Sheinis's upbringing and personality made him always proper and respectful towards his opponents.

The laws of 1997–1999 contained perestroika-era, non-Soviet legal norms concerning the nomination of candidates, the structure of the electoral system (both in the broad and narrow sense of the word), openness and publicity of elections. These laws were favorably distinct from the Soviet laws by their systematic and strict definitions; they were in many respects similar to mathematical constructions, which, apparently, was a consequence of their developers' background in natural science.

Together with the election laws, the parts of the administrative and criminal codes that dealt with accountability for electoral fraud were expanded, and Viktor Sheinis was also involved in this process. The laws of the late 1990s gave the supporters of the democratic path of Russia's development an opportunity to fight for the establishment of genuine, constitutional election. Unfortunately, starting from the mid-2000s the fight became more and more difficult, and one of the reasons for this was the degradation of the electoral legislation.

The 1997 law made a strong impression on both supporters of Russia's liberal development and their opponents. The author of this paper was the chair of the constituency election commission for the Moscow City Duma election [4: 66–71] at the time of the law's enactment, and remembers the satisfaction he felt about the law being enacted. And he also remembers the displeasure expressed about the new law by former election organizers such as Anatoly Petrov, the chief ideologist of the Luzhkov government.

The first satisfying feature was the systematic presentation and the strictness of the use of terms, which was not at all typical of Soviet legislation. The second striking feature of the law was the new and detailed description of the vote counting procedure. Such a description is absent in the electoral laws of many countries because honest counting is taken for granted there. For Russia, it was essential.

History of the 1997 Law on Basic Guarantees

Initially, two bills with the same titles "On Basic Guarantees of Electoral Rights and the Right to Participate in Referendums of Citizens of Russian Federation" were submitted to the State Duma. One of them was prepared by the Central Election Commission of the Russian Federation; it was introduced by the President and presented to the Duma by Aleksandr Ivanchenko, the then Chair of the Central Election Commission. The other was developed by a group of members of the State Duma Committee on Legislation, Judicial and Legal Reform. As much as it is possible to tell from the procedure of presentation of this bill, Viktor Sheinis was the head of this group. Although the project was presented by Sheinis' fellow party member Yelena Mizulina at the first reading, later on it was Viktor Sheinis himslef who spoke to the deputies [15]. The drafts did not contradict each other and simply merged by the time of the second reading.

Viktor Sheinis presented the merged bills in the second reading. After a relatively short discussion, the draft was passed on to the second reading by an overwhelming majority (about 80%) [16]. The draft also passed its third reading by unanimous vote [17].

Interestingly, the draft was rejected by the Federation Council. The main argument of the Federation Council was that the bill encroached on the jurisdiction of the subjects of the Federation. This argument was quite valid: the 1997 law did indeed enshrine guarantees of citizens' electoral rights as uniform for all subjects of the Federation. Moreover, the adopted law did promote centralization of state power and was hardly aimed at federalizing the country.

The veto of the Federation Council was overridden by 384 votes of the State Duma [23], and the law was eventually signed by the President in September 1997.

On the referendum

An obvious innovation of the 1997 law was the unification of the rules for elections and referendums in a single law. The 1994 Law "On Basic Guarantees of Citizens' Electoral Rights" did not include regulation of referendum procedures. The drafters of the 1997 law believed, not without reason, that they were creating the main law that would be common to the two institutions of direct democracy, which are simultaneously declared by the Constitution as "the highest direct expression of the power of the people" (Part 3, Article 3 of the Constitution of Russia).

To this day, the integration of election and referendum regulations in a single law remains a topic of debate [5: 40–43]. I believe that this was not the smartest move, since such integration significantly increased the length of the text of the law and overburdened it. Each referendum is governed not only by a "framework" law, but also by a specific referendum law. For example, an all-Russian referendum is regulated by the Federal Constitutional Law "On the Referendum of the Russian Federation" (such a law already existed by 1997), which actually includes all the provisions of the "framework" law. Moreover, the constitutional status of the referendum law conflicts with the provision of the "framework" law on its primacy over other electoral laws.

The referendum-related clauses of the bill did not cause any disagreement during the discussion in the State Duma. On the whole, we should note as a whole, the State Duma responded quite favorably to this bill. More objections were raised by draft laws on the election of deputies to the State Duma and on the election of the President of the Russian Federation that were based on the said bill. Remarkably, many amendments to the last two drafts were rejected on the grounds that they contradicted the already adopted Law on Basic Guarantees [19; 21].

On election organizers

One of the flaws of Soviet elections was the fact that they were organized by bodies that effectively were the main stakeholders in these elections. Although formally elections were organized by election commissions appointed by the executive branch, the CPSU committees were the actual organizers of elections in the Soviet Union.

There are several aspects to the issue concerning the independence and impartiality of election commissions, from personnel to resources. The solution to the issue is not limited to legislation (it should be noted that in different countries election organization is handled in different ways and depends largely on the political and state structure) [1].

The authors of the 1997 law tried to legislate the independence of election commissions. The order of appointment of commissions was changed, the powers of the commissions were more clearly defined, and their independence within the limits of their powers was stipulated by law.

It was established (in fact, it had been established before, but not in such an explicit form) that election commissions have two objectives: 1) to prepare and conduct elections and 2) to implement and protect the electoral rights and the right to participate in a referendum of citizens of the Russian Federation. The second objective had to be frequently brought to the attention of the courts when there was evidence of bias or inaction of election commissions.

According to the 1997 law, election commissions below the regional level are appointed by the representative branch of government rather than by the executive (as was the case in the Soviet era). Regional commissions are appointed on a parity basis by the executive and the representative (legislative) branches of government.

The law stipulated a limit on the number of state and municipal employees serving in the commissions, limiting it to a third (in 2005 this limit would be increased to a half).

The law also stipulated that the appointing bodies had to appoint at least a third of the commission's members "on the basis of proposals received from each of the electoral associations, electoral blocs with factions in the State Duma of the Federal Assembly of the Russian Federation, as well as on the basis of proposals received from electoral associations, electoral blocs with factions in the legislative (representative) body of state power of a constituent entity of the Russian Federation and in an elected body of local self-government". This rule turned out to be ineffective in practice, and with the reduced number of "parliamentary parties" that occurred during the period of "sovereign democracy" of 2005–2011, even harmful, since it was exploited by the administration [2].

An important point was the confirmation and expansion of the powers that came with the status of an election commission member with consultative capacity. Such members were leveled in their rights with members with a deciding vote (except in cases of the right to vote and issue ballots). This status existed until 2022 and slowed the degradation of elections in Russia.

Moreover, the 1997 law expanded the status of observers, granting them access not only to precinct commissions, but to all other commissions as well.

In the 1990s, election commissions played quite a major role. Up until 2002, higher-level commissions (i.e., other than precinct commissions) had the power both to register candidates and to de-register them. If a political force could bring the election commissions under its control, it would gain an electoral advantage and turn elections into a procedure for reproducing itself. Looking further forward, we have to say that this is exactly what happened.

Unfortunately, the administration was able to adjust to these innovations relatively quickly. For example, following the adoption of the law, the Moscow mayor's office, which tried to keep party representatives out of the commissions until 1997, began to divide parties into "desirable" and "undesirable", treating the established one-third as the maximum share of party members rather than the minimum. This became especially obvious in the 2000s, when the number of parties became scarce [1].

By the mid-1990s in Moscow, it had already become clear that the executive branch — the administration, that is — was becoming the main actor in the electoral playfield. Despite the large number of political public associations (including parties) that emerged in the flurry of anti-communist enthusiasm, and in many respects due to their variety, there was again a political dominance in politics and elections, although it was not called a party.

Candidate nomination and registration

The 1997 law provided for nomination of candidates both by electoral associations and groups of citizens, as well as self-nomination.

An important innovation of the 1997 law was the list of grounds on which a candidate could be denied registration. It reduced the possibility of willful rejection and de-registration, especially since such rejections and cases of de-registrations could be directly challenged in court.

Viktor Sheinis and Vladislav Lutsenko responded to Aleksandr Ivanchenko's criticism by pointing out that in the 1995 election, the law required verification of the validity of submitted signatures only "in case there is doubt about the validity of the data contained in the signature lists", which left room for potential abuse — signature lists submitted by undesirable candidates could subjected to doubt. In 1997, the law established a uniform verification procedure: it was now mandatory for the commission to verify the signature sheets of all candidates [12].

The chapter on candidate nomination and registration became more detailed, regulating the timeframe and procedure for registration.

Campaigning

The 1997 law significantly expanded the rules for campaigning. These rules persisted in the 2000s, but were supplemented by regressive restrictions that were essentially opportunistic (i.e., made campaigning more difficult for the government's opponents) and sometimes outright ridiculous (like the ban on criticizing opponents on television).

The provisions of the 1997 law were aimed at giving all candidates equal rights in campaigning. In particular, the law made it mandatory for state media to provide free airtime and print space to candidates. Moreover, state TV channels were required to hold pre-election debates.

The law introduced an important definition of voter bribery.

Restrictions on campaigning did not go beyond constitutional limitations.

Voting and vote counting

The most important innovations of the 1997 law were the provisions on how voting and vote counting should be organized. These procedures were outlined in a detailed enough manner to eliminate fraud while complying with the statutory rules. There was now a description of the procedures for sorting and direct counting of ballots. The procedure established by the law was frowned upon by veteran election organizers — it seemed excessive and significantly slowed down the vote counting procedures. These innovations were implemented slowly and in many cases are still largely not followed.

The new requirements provided conscientious observers with a powerful tool and therefore caused numerous disagreements between such observers and either negligent or irresponsible (meaning those who do not consider the law mandatory) heads of commissions. These requirements undoubtedly prevented a certain amount of direct fraud, but, most importantly, they made it possible to record procedural violations during vote counting.

The 1999 amendments

The Federal Law No. 55-FZ of March 30, 1999 "On Amendments and Additions to the Federal Law "On Basic Guarantees of Electoral Rights and the Right to Participate in Referendums of Citizens of the Russian Federation" introduced important modifications. Viktor Sheinis was one of the initiators of this law. As during the drafting of the 1997 law, the legislators tried to take into account the shortcomings that became apparent in practice [10].

First, it became mandatory for candidates to report their criminal record and foreign citizenship, as well as to submit information on income and property.

Second, the option of registering candidates by receiving a cash deposit was referenced for the first time. Implemented in specific laws, this option was instrumental in giving Russian elections, especially local ones, a second wind. The option was abolished only in 2009 [6: 564].

That law also encountered some difficulties before being passed. On 17 July 1998, it was rejected by the Federation Council, after which a conciliation commission was established to amend the law. On September 11, the Duma adopted the amended law, but the new version was again rejected by the Federation Council on October 14. The Duma then overrode the upper house's veto on October 23, but the President overrode the veto on November 5. As a result, a special commission to prepare a new coordinated version that would take the proposals of the President into account had to be created [6: 338]. Viktor Sheinis took part in the proceedings of these commissions and spoke on their behalf at Duma sessions [22; 18].

The 1999 laws on the election of deputies to the State Duma and presidential elections

Viktor Sheinis was directly involved in the development of these laws as a member of the Committee on Legislation, Judicial and Legal Reform. He was the main speaker during the discussion of the bill on the election of deputies to the State Duma in the first reading [20]. In the second and third readings, the bill was presented by committee chairman Anatoly Lukyanov, while Viktor Sheinis addressed a number of questions from deputies [19].

These laws were brought in line with the previously enacted Law on Basic Guarantees. They also met international electoral standards, as was noted by international observers [11].

It is worth noting that when discussed in the State Duma, these laws generated many more objections compared to the "framework" law. This does not come as a surprise, given the personal interest of the deputies in said laws. However, many proposed amendments were rejected on the grounds that they were not in line with the Law on Basic Guarantees [19; 21].

The Law on the Election of Deputies contained major progressive innovations and took into account the experience of the preceding elections of 1995. The law specified that only political associations could participate in elections (it was not yet about the exclusivity of parties). The procedure for collecting and verifying signatures in support of candidate nomination was defined more clearly. Voter registration and campaign funding procedures were more clearly outlined as well.

During the discussion of the draft law, a heated debate was sparked by the issue of whether the leaders of an electoral association's list could simultaneously run as part of the list and in a majority constituency. An even more heated discussion was triggered by the issue of possible use of the electoral pledge (we would like to bring attention to the out that CPRF member Aleksei Salii was the main advocate of the electoral pledge in the Duma). There was also a heated discussion regarding the rules for the drawing the borders of constituencies.

Eventually, the law introduced the option of simultaneous participation in elections both as part of the list and in a majority constituency, as well as the possibility of registration by pledge [19].

An important feature of the law was the sanctions for refusing the seat of a candidate from the top three of the federal list: in this case, the seat had to be transferred to another list. Alas, this clause of the law contained a caveat about "compelling circumstances", which was not very clearly defined. As a result, this legal requirement was ignored in the 1999 elections (candidates who were in the top three on their respective lists gave up their seats: Vasily Starodubtsev of the CPRF, Sergei Shoigu of the Unity bloc, Yuri Luzhkov and Vladimir Yakovlev of the Fatherland — All Russia bloc) [6: 357–358; 13].

In late 1999, the State Duma adopted the law on presidential elections, which Viktor Sheinis actively helped to develop. During the discussion of this law, there was a heated debate on the issue of the age limit for a presidential candidate, as well as the issue of the need for a candidate's medical examination.

The law did not provide for the option of paying an electoral deposit for registration. It is curious that when it came to this particular issue, Viktor Sheinis, being one of the developers, found himself in the minority among the members of the Committee on Legislation, Judicial and Legal Reform [21].

Code of Administrative Offenses

In the 1990s, the part of the RSFSR Code of Administrative Offenses dedicated to election violations was undergoing extensive change along with the development of the election legislation itself. Viktor Sheinis was one of the proponents of several laws that made expansive and clarifying amendments to the Code.

Federal Law of January 2, 2000 No. 4-FZ "On Amendments and Additions to the Code of RSFSR on Administrative Offenses" replaced the existing 13 articles of the Code of Administrative Offenses with 24 new and updated articles. The year 2001 would see the adoption of the Code of Administrative Offenses of the Russian Federation, and all these articles would be included therein. The new articles prescribed penalties for failure to comply with requirements that appeared in the electoral law between 1993 and 1999. Unfortunately, these articles would be applied rarely and selectively.

On legislation and enforcement. Key takeaways

The elections of the 1990s, which are considered "dirty" thanks to the efforts of the current Russian authorities, were real elections largely due to the 1990s perestroika legislation. The lack of newly formed nomenklatura and the economic resources of the country that had not yet been concentrated in one hands made it possible to implement the main feature of these elections — competitiveness. Admittedly, those elections had many of the flaws inherent in a rich man's contest, and the legislators, who at that time did not yet constitute a unified and obedient mass, tried to counteract those flaws. They, of course, also drew attention to the emerging use of administrative resources, which eventually suppressed all private "non-administrative" resources.

The election of deputies to the State Duma of the third convocation in 1999 was the last federal election in which there was genuine political competition that characterized the elections in the 1990s. It was also the last election to recieve a generally positive assessment from European observers [11].

The competitiveness of that election was primarily conditioned by the socio-political situation and the presence of three relatively balanced political forces that had actual resources to influence the electorate. These three forces were the CPRF and the Unity and Fatherland — All Russia blocs. The legislation of the 1990s, however, played a significant role as well, ensuring at the very least the absence of mass fraud at the federal level.

After the radical reforms of the electoral legislation in 2005–2007, Russia saw massive fraud in federal and lower-level elections [3: 176–258]. And after that the degradation of electoral legislation became a common trend that was only occasionally interrupted [6; 7; 8].

Viktor Sheinis understood that not everything in society was determined by laws. On one occasion, when he spoke about those legal norms that prevented the use of administrative resources, he said: "Good laws are not enough for the laws to be actually implemented. It's a societal issue." He later wrote: "Of course, the electoral law (like many others) is at the root of many violations of citizens' rights. But it's far more than just that. The actual practice, to some extent following this law, to some extent distracting and violating it, leads to systematic corruption of the very essence of elections. This happens at all stages — both before the elections and during the vote itself" [9].

The history of Russian electoral legislation and Russian elections confirms these words.

Received 26.07.2023, revision received 19.10.2023.

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