Between the law and oblivion: constitutional standards for remote e-voting

Brikulsky I.A.

Abstract

The author explores the issue of legal regulation of remote e-voting (REV) from the point of view of compliance with the principle of the rule of law, as well as the constitutional principles of free elections. The analysis of this material is limited exclusively to the legal framework of the REV. According to the author, a potential discussion about REV is impossible without an analysis of the constitutional and legal aspect, the absence of which makes such disputes meaningless. To assess the compliance of the REVwith the above principles, it is proposed to use two author's tests: a test for compliance with the standards of the legal law and a test for compliance with the constitutional principles of free elections. To develop the first test, the author turns to the theory of law as a measure of freedom and justice, the practice of the Constitutional Court of the Russian Federation, the ECHR, as well as the Venice Commission, systematizes the requirements for the law as a result of the activities of parliament and suitable for evaluating the REV and electoral legislation. To develop the second test, the author refers to the basic principles of the organization of elections, to their constitutional principles, and conducts a test for compliance with the specified principles of the current legislation on REV.

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Introduction

Remote e-voting is a rather complex phenomenon in the political and legal field, which, nevertheless, is rapidly being introduced into electoral practices at a rather Stalinist pace: from three constituencies in the 2019 Moscow City Duma election to the federal scale in the 2024 presidential election. Assessing the issue from a single perspective is clearly insufficient, whether it is law, programming, math, or political science. Any study that focuses on REV and claims to be perfectly complete (like the Hegelian system) will suffer from a lack of interdisciplinary approach. This piece cannot objectively encompass legal research on REV either. Instead, it will attempt to set a starting point or tone for such discussions, primarily among legal scholars. The starting point is the constitutionality of the legal framework of REV, without the discussion of which all other discussions on principles, norms, effectiveness and instruments, in our opinion, are meaningless.

We strongly disagree with legal scholarship that assesses only specific fragments of REV, as it only creates the impression of an ongoing debate and controversy. In our opinion, there cannot be any controversyon a number of issues, just as a normative act cannot be semi-constitutional: it is either unconstitutional (in full or in part) or constitutional. The same is true with issues of legal certainty in normative acts: it is either present or absent, and if there is substantial doubt, it is interpreted to include lack of legal certainty.

This paper aims to assess the legal framing of REV with a focus on the regulatory treatment of REV. The main claim, as further analysis will show, is solely to assess the legal framework of REV, not REV and electronic voting as a phenomenon. We will not be evaluating arguments about the relevance or appropriateness of REV, its effectiveness, its convenience, its speed, because: first, such arguments are immaterial to the law and questions of constitutionality, second, because of the value-judgement factor present in such arguments, and third, because we think it appropriate to leave the evaluation of these categories to experts from other fields.

The present paper proposes two author-developed tests to assess the constitutionality of REV's legal framework: the first one assesses REV's compliance with the standards of legal law (rule of law principle), the second one assesses its compliance with the constitutional principles of free elections. In order to develop a test for compliance with the standards of legal law, the approaches of the Constitutional Court of the Russian Federation and the Venice Commission were systematized in terms of the requirements of the rule of law in lawmaking. The author identified the basic and suitable criteria and standards, the lack of which strips the law of its legal nature and, consequently, constitutionality: (1) legal certainty, (2) stability, (3) predictability, (4) accessibility of the law, (5) limits of administrative discretion.

Both tests can be used either simultaneously and in stages (first the test for assessing the standards of legal law, then the test for assessing constitutional principles) or as alternatives. Theoretical relevance is comprised of three factors. The first factor is that the regulation of REV is assessed directly against the basic requirements of the rule of law and free election standards, that is, the analysis is grounded in the legal foundation without which any other legal analysis of REV would be incomplete. The second factor is that we will attempt to bring back the discussion of REV into the constitutional and legal context from technical one: in our opinion, certain legal research writings on REV are limited only to a formal assessment of the available acts and lack substantial legal (especially constitutional and legal) analysis. The analysis of REV itself is usually limited to a description and superficial assessment of the role of such acts in the system of legislation. In so doing, legislation is not subjected to critical evaluation and is perceived like the Hegelian principle, where that which is real is reasonable. The third factor is that we are going to focus on issues of law and the Constitution, assessing REV as legal scholars and not as political science scholars, political movement members, technical experts, etc. The practical relevans is revealed in the fact that such tests can be used both in the development of REV-related regulations and in law enforcement practice to protect the electoral rights of both voters and candidates.

List of abbreviations used:

DIT – Department of Information Technologies of Moscow;

REV – Remote electronic voting;

CEC – Central Election Commission of Russia;

TEC REV – Territorial Election Commission for REV;

TEV – Terminal for electronic voting;

Law "On Basic Guarantees..." - Federal Law "On Basic Guarantees of Electoral Rights and the Right to Participate in Referendums of Citizens of Russian Federation" of June 12, 2002, No. 67-FZ;

CEC Resolution (or resolutions, depending on the context) on the REV procedure – CEC Resolution No. 26/225-8 of July 20, 2021 "On the procedure for remote e-voting in the election scheduled for September 19, 2021", CEC Resolution No. 143/1099-8 of December 20, 2023 "On the procedure for remote e-voting in the election of the President of the Russian Federation scheduled for March 17, 2024".

1. Legal law standards: can the constitution demand quality laws from parliament?

The question itself may seem fallacious: lawmaking is the exclusive domain of parliament, which determines the content and nature of the acts it adopts all by itself. As H.F.Hayek pointed out, the legislature is not bound by any other law, "what it says concerning particular matters has the same force as a general rule and will supersede any such existing rule" [8: 145]. In other words, parliament as an institution of government is bound only by the constitution and is not bound by any other laws. Therefore, the only will that the legislature is bound by is solely the will of the legislator themselves. But does the thesis of exclusive parliamentary competence in the field of lawmaking imply that the parliament has absolute and unlimited competence? Even if the basic law of the state does not stipulate strict limits of the legislator's discretion on matters of their own competence, this does not mean that such competence is absolute. Anything else would mean that it is sufficient for the constitutionality and legality of acts of parliament that the act was passed directly by parliament, that is, that it was a law in its formal legal sense.

The problem of distinguishing between law as a body and law as an act has been known to legal science for quite some time [9]. For example, V.S.Nersesyants pointed out that the norms of legislation are legal only insofar as they express the principle of formal equality and freedom of individuals, the law can both correspond to the body of law "and diverge from it" [12: 18]. G.Radbruch argued that the utility of law as an act is expressed in the fact that it creates legal certainty and seeks justice, without legal certainty being an end in itself and necessary to ensure justice. In cases where the act of law is blatantly incompatible with justice and denies it, it is invalidated and subordinated to justice [13: 233]. Consequently, if acts of law trample on the will to justice, such acts of law are invalid, non-legal, and the people should not obey them [13: 225-226]. According to V.A.Chetvernin, state bodies should be vested only with such power (competence), which are necessary to "ensure freedom, prevention and suppression of aggressive violence" [4: 13], and freedom, including equality of freedom, is "the essence of law, legal law and the rule of law state" [4: 19].

It can be assumed that the Russian Constitution does not explicitly include any requirements for the quality of acts of law adopted by the Federal Assembly. However, the explicit nature of constitutional norms does not mean that such requirements do not exist. According to V.M.Isakov, the standards of legal law are derived from a number of articles of the Constitution, thus obliging the legislator to act in the spirit of law and adopt legal laws; these include Articles 1 (Part 1), 2, 15 (Parts 1 and 2), 17 (Parts 1-3), 18, 19 (Parts 1 and 2), 45, 46, 55 (Parts 2 and 3) [9]. In other words, this author derives the requirements and standards of legal law not so much from the spirit of the Constitution as from its letter. Let us consider a number of key provisions of the Constitution, which, in our opinion, to a greater extent reflect the requirements for the quality of laws.

For example, according to Article 1 (Part 1) of the Constitution, Russia is a state governed by the rule of law, which obliges all state bodies to act in accordance with this principle. Article 15 (Parts 1 and 2) enshrines the Constitution as the supreme legal force, direct action, and application throughout the entire territory of Russia, and the public authorities represented by state bodies and local self-government are obliged to strictly observe the provisions of the Basic Law. As a result, the enshrinement of the principle of the rule of law in the Constitution automatically obliges the legislator to fulfill and implement this binding principle. Article 2 of the Constitution establishes that the highest value for the state is the human being, his rights and freedoms, while their recognition, observance and protection is the duty of the state, which means that there is no higher value. Extending the requirements of Article 2 to the work of the parliament, we could assert that when regulating any area of legal relations, human rights and freedoms should prevail over the convenience of state administration or public interest of the state.

However, according to V.M.Isakov, Articles 17, 18, 19, 45, 46, 55 (Parts 2 and 3) play an equally important role in determining the standards of a legal law. In our opinion, Article 18 of the Constitution articulates such standards to the fullest extent. Article 18 of the Constitution does not merely enshrine that rights and freedoms are directly applicable. In the context of our paper, another part of the norm is more important: rights and freedoms "determine the meaning, content and application of laws, the activities of the legislative and executive authorities..." (emphasis mine – I.B.). We believe that the provisions contained in Part 3 of Article 15 of the Constitution of the Russian Federation should also be referred to the standards of the legal law in the REV context: according to this Part, any normative legal acts that affect the rights, freedoms and duties cannot be applied unless they have been made publicly available.

In view of the fact that REV is explicitly concerned with elections, Article 3 (Parts 3 and 4) of the Constitution, which enshrines that referendum and free elections are the highest direct expression of the power of the people, should also be taken into account, and that misappropriation of power is punishable by law. We believe that in the context of electoral relations, the latter also implies the ban on the appropriation by legislative or executive bodies of those powers of electoral bodies that pertain to election organization.

Consequently, the legislator has a fairly clear benchmark: the legislators's broad and unbounded discretion is bound by the fairly clear requirements of the Constitution. This is reflected in the practice of Russia's Constitutional Court. For example, the Constitutional Court of Russia pointed out that a norm must comply with the general legal criterion of certainty, clarity and unambiguity of a legal norm. The Court derives this criterion from the requirements of the rule of law as a synonym of the rule of law, as well as the principle of equality, since equality can be ensured only if the norm is uniformly understood and interpreted by all law enforcers [20]. The reverse, that is, the uncertainty in the content of norms, results in their unclear understanding and application, creating the possibility of unlimited discretion; this inevitably results in arbitrariness, and arbitrariness results in violation of rights and freedoms [28; 40].

In a number of other resolutions, the Constitutional Court indicated a clearer outline of the requirements for the quality of the law: first, the norm should be formally defined, clear, precise, not allowing an expansive interpretation of the established restrictions and, as a consequence, their arbitrary application; second, it should introduce only the restrictions that meet the requirements of fairness; third, it should be stable and consistent with the legal expectations of the participants of legal relations [43; 39]. The standard of predictability and stability of legal regulation requires a more detailed discussion. Russian Constitutional Court emphasized that regulation should not be sudden in its effect, and the participants of legal relations should to a reasonable extent foresee the consequences of their behavior, be sure of the invariability of their status and acquired rights [21; 32; 19; 46].

Regarding legal relations in electoral context, the Court indicated that the stability of the electoral law is a guarantee of equality and electoral rights of citizens, and fundamental changes in the electoral legislation should be introduced within a reasonable period of time, so that the participants in legal relations could take into account in a timely manner the new rules of organization and conduct of elections and have equal opportunities to prepare for participation, including as candidates and electoral associations. According to the Constitutional Court of the Russian Federation, deviating from such a standard means an advantage is created for individual political parties, which means a violation of the constitutional principles of multipartyism and competition [47]. Consequently, we will consider the constitutional guarantees of political competition (Parts 1-4 of Article 13 of the Constitution of the Russian Federation) as the necessary standards of the legal law as well.

The standards of legal law are not limited to the Russian Constitution: standards and requirements are also found in the recommendations of the Venice Commission and the ECHR. Despite Russia's withdrawal from the Council of Europe in 2022, these standards still play an important role. First, the regulation on REV was adopted when Russia was a member of the Council of Europe, which means that at a minimum, there is an obligation to implement the decisions of the ECHR, and at a maximum, to heed the recommendations of the Venice Commission. Second, withdrawing from the Council of Europe should not mean that Russia can lower the standards of the rule of law. According to V.M.Isakov, ECHR's use of the wording "provided by law" does not simply refer to national legislation, but to the "quality of the law" and its compatibility with the rule of law. ECHR also specified that compliance with the Convention is impossible without bringing national legislation into compliance with the standards of the rule of law [9]. We believe that the standards of laws in the ECHR practice overlap almost completely with the standards contained in the Constitution of the Russia and decisions of the Constitutional Court of Russia. The following standards of legal laws can be derived from the ECHR practice: (1) accessibility and predictability of the law and any other normative act regulating rights, freedoms and obligations, (2) clear limits of discretion of the authorities and protection from arbitrary interference with rights and freedoms, (3) accuracy and clarity of the norm [9].

The standards of the rule of law are also contained in a number of Venice Commission documents: a report on the rule of law [6] and a rule of law checklist [7]. We will not dwell on them in detail, as for the most part these recommendations replicate the standards we have already mentioned. The Report on the compatibility of remote voting and electronic voting with the standards of the Council of Europe deserves special attention (note that for objective reasons the report does not differentiate between remote e-voting and e-voting at the polling station) [5]. For the most part, the report describes issues specific to voting by mail. With regard to e-voting, the focus is more on issues of reliability and security: e-voting, in the Commission's view, should only be used if it is secure, reliable and meets transparency standards. The ability of voters to have their votes confirmed, to make adjustments by secret ballot is cited as a measure of reliability. The Venice Commission also indicates that the period during which e-voting can be conducted should be defined and communicated to the public well in advance of the vote itself. Participants in the electoral process should be informed well in advance of the vote start about organizational specifics of e-voting.

To sum up, the following standards of legal law can be identified so far:

1) legal certainty: clarity, precision, accuracy of a legal norm, exclusion of its ambiguity;

2) stability and predictability, reasonable timing of changes, compliance with legal expectations;

3) accessibility of the law or other regulatory act;

4) prohibition of unlimited discretion of administrative bodies, the powers of administrative bodies should be clearly derived from the law.

In this section, we focused exclusively on the standard of legal law, i.e. its quality from the perspective of the rule of law, assessing it mostly in terms of format. This does not remove the need to assess the REV regulation also in terms of the constitutional principles of free elections: equality, secrecy of the vote, organization of elections by electoral bodies, publicity and openness.

2. Issues of correlation: standards of legal law and REV regulation

Despite the fact that implementation of REV began in 2019, this paper builds on the provisions regarding REV enshrined in the Law "On Basic Guarantees...", which became the foundation for federal elections, such as the 2021 State Duma election, and the 2024 presidential election. First of all, we mean Clause 14 of Article 64 of the Law "On Basic Guarantees..." in the version of May 23, 2020 (now invalidated), since this was the version in force at the time of the State Duma election, as well as Article 64.1 of the same law in the current version (there is no point in detailed consideration of the provisions on REV, which are present in the laws on the State Duma and presidential elections, since they do not contain detailed regulation and merely refer to the Law "On Basic Guarantees...").

2.1. Issues of legal certainty in REV regulation

The standard of legal certainty requires that the provisions of the law must be clear, concise, precise, consistent. To ensure legal certainty of the law means to set it out in such a way that the law is understandable to the participants of the legal relations whose activities are subject to it. What should follow from the clear and precise wording of the law is not only the scope of regulated legal relations, but also the proper degree of detail regarding the actions of the participants in legal relations, as well as the consequences of the legally significant result of their behavior. If a legal regulation is defined with an insufficient degree of precision, clarity and accuracy, it leads to ambiguity, broad interpretation, contradictory application, and thus to arbitrariness and violation of rights. Failure to meet the basic standard of legal certainty is the "starting point" for the violation of all other standards of legal law that follow from legal certainty.

Remote e-voting is more than just a new voting form in Russia. This form differs significantly from all other known electoral practices in Russia. At the very least, the difference is that all electoral processes do not take place on paper, which makes any control over them virtually impossible. The voting process is not the only thing that is inevitably affected by REV: the whole election campaign and, in particular, the constitutional principles of election administration are affected as well (this will be discussed in other sections of this paper).

Therefore, the introduction of a new form of voting (REV) should be accompanied by the development of a careful and elaborate legal text: the legal framework for REV should be developed in the same detail as the legal framework for traditional voting. It is clear that while even the existing range of regulations and standards for voting on paper can and does enable violations, what is there to say about the form of voting that appears as if it were concealed from the key participants in legal relations in electoral context?

The wording of Clause 14 of Article 64 of the Law "On Basic Guarantees..." is quite simple: as the right of the CEC of Russia at its own discretion to make a decision on conducting REV at any stage of the election campaign. It was with this provision that the 2021 State Duma election was held. The provisions of Article 64.1 of the Law "On Basic Guarantees..." are not so much different: Clauses 2 and 4 of the Article actually reproduce, with a slight difference, the provisions of Article 64.14, which was no longer in force at the time. In other regards, the new Article 64.1 does not provide detailed regulation of REV, but only a number of technical and procedural details.

The REV regulations lack key provisions that would make it possible to call the regulation clear, precise, accurate and understandable. The key question is: how will REV correlate with the constitutional principles of election administration (meaning the principles prescribed in Article 3 of the Law "On Basic Guarantees..."), guarantees of electoral rights, which are predominantly prescribed for paper voting in the Law "On Basic Guarantees..."? And then again: how will REV as a whole relate to a law that is predominantly focused on paper voting, since a number of the requirements for REV are legally and factually unenforceable? Secrecy of the vote and guarantees to ensure it, guarantees to ensure observation, openness and transparency, guarantees of candidate rights, prohibition of coercion, etc. — the law was never expressly adapted to ensure these principles for REV. In actuality, only one point follows from the mentioned provisions of the law: the public power of election commissions to organize REV. The limits of commissions' discretion, the limits of such power, their specific jurisdiction are not provided. The issue of legal certainty of the Law "On Basic Guarantees..." is aggravated by the laws based on lex specialis and regulate the elections of the President and deputies of the State Duma. That said, Article 69 (Part 17) of the Law on the Election of the President and Article 81 (Part 17) of the Law on the Election of Deputies to the State Duma provide that REV shall be conducted in accordance with the requirements of the Law "On Basic Guarantees..." and and shall follow the procedure determined by the CEC. What we see is a paradox of sorts: special provisions give preference to general provisions, which do not regulate this issue at all.

Consequently, due to the fact that the REV provisions do not establish the key parameters of the electoral law, its direct implementation, it is not so much about legal uncertainty (that is, when a provision is in place, but insufficiently regulated, lacks clarity, precision, etc.) as it is about a more broad-based defect (a legal gap), that is, when an issue essential for legal relations is not regulated at all. The Constitutional Court of the Russian Federation in its practice has repeatedly pointed out that if a gap in the law is insurmountable with the help of law enforcement of ordinary jurisdictional means, such an issue acquires a constitutional character and can be resolved through constitutional jurisdiction [41; 34; 23; 36]. The Court also indicated that the mere presence of legal uncertainty is sufficient to recognize a provision as contrary to the Constitution of the Russian Federation [22; 29].

One could present the following objection to this argument: can a provision that refers to the decision of the CEC and election commissions of the constituent entities of the Russian Federation be called a gap provision? We believe it is essential to consider the following caveat in this case: it is a reference not to a specific decision, but, in fact, to the discretion of the electoral bodies. In other words, the legislator relegates the regulation of REV to the CEC with the need to follow a number of formal criteria, as required by Clause 13 of Article 64.1 of the Law "On Basic Guarantees...". The requirements of this paragraph are technical and organizational in nature. The legislator never regulated in detail the constitutional principles of free elections that use REV. This warrants a disclaimer: regulation of REV and the electoral process is the domain of the legislature, so even relegating the regulation of these principles to the CEC would be an infringement on the legislator's competence.

Let us assume that such regulation by the CEC can be allowed. In fulfillment of these norms, a number of CEC regulations on the REV procedure are adopted. Let us take the regulation in force during the Duma elections [16] as a baseline. First, the resolution fails to regulate the specifics of voting rights when using REV, especially the electoral safeguards that a paper ballot provides. The same applies to the principles of free elections. Second, the resolution fails to deal with the technical part as well: the text does not indicate the type of software, encryption or information system that will be used, how the secrecy of the vote and observation of the voting process will be ensured, what guarantees and opportunities candidates will obtain from electronic voting.

Opponents of such a view might raise an objection: is a detailed regulation of REV even possible at the bylaw level, granted that, in general, such a form of voting depends on evolving technical and informational details? We cannot but agree that REV is more dependent on such technical details and features that are not available to a citizen who does not have specialized knowledge of math, encryption, blockchain, and information technology. However, this only confirms our main thesis: the introduction of REV should be accompanied by regulation of electoral rights and electoral procedures no less detailed than that of traditional voting, at least wherever it is possible. "Technical nature", digitalization, etc., do not absolve the legislator of the obligation to create proper safeguards for electoral rights by incorporating it into a sounder law.

Gaps in the regulation indicate that the legislator failed to take proper steps to balance legal detail with the special nature of REV. It is the legal uncertainty and gaps in the regulation of REV that represent the "starting point" for deviation from other standards of legal law — stability, predictability, and accessibility.

It is worth mentioning that some authors argue that at present, the electoral legislation "enshrines only basic aspects relevant to the implementation of remote e-voting, while the details of its organization and implementation are established at the by-law level" [11]. At the same time, the authors of the piece claim that they have "reviewed the main legal acts" that regulate REV. Such claims appear unfounded and debatable for several reasons. First, how can one call it basic regulation when fact of said regulation is virtually nonexistent in the law? Second, how can one claim that the details are regulated even at the by-law level, if the essential details, including those of a technical nature, as well as the guarantees of electoral rights applicable to the REV, are nonexistent in it?

2.2. Predictability of REV regulation and issues of legitimate expectations

Predictability as one of the standards of the legal law means that first, the law has to be publicized and accessible before it is applied; second, it has to be articulated clearly and precisely enough so that the participants in legal relations could coordinate with it the appropriate course of their conduct and be able to foresee its consequences. In other words, a provision has to be clear enough for a citizen to understand how it will be applied to specific conduct and actions and what outcome it will lead to. The Constitutional Court of Russia stressed the unacceptability of the effect of suddenness: norm-setting policy should be predictable, allowing citizens to foresee the consequences of their behavior within reasonable limits and to be sure of the invariability of their status and acquired rights [21; 32; 19; 46]. One can hardly describe REV provisions as predictable, at the very least, because they are probabilistic: one cannot predict something that objectively does not exist.

Let us consider the 2021 State Duma elections as an example of what we just discussed. Clause 14 of Article 64 of the Law "On Basic Guarantees..." was added only in 2020, i.e. almost a year before the State Duma election. Nevertheless, this does not affect the predictability of the provision due to its vagueness: the mere fact of assuming that REV may be organized in a federal election is not a sign that the participants of legal relations in electoral context can foresee all the nuances of potential regulation by the CEC. This provision stipulates that the CEC makes an independent decision on the implementation of REV. The law did not set a timeframe. The Decree of the President of Russia calling the election is dated June 17, 2021, and the CEC decree on the procedure for REV implementation is dated July 20, 2021. Consequently, the key act at the time, which was intended to regulate REV issues, was passed a little over a month after the start of the election campaign. It should be noted that information about the use of REV in the 2021 election was still in the CEC Resolution No. 7/49-8 of May 25, 2021, but this act merely stated the use of REV without establishing the order of its application or procedure. The May 25 deadline is insufficient in any case, as there was less than a month before the election was called.

In any case, the key aspects of REV regulation appear after the beginning of the election campaign rather than before it, and in the case of the State Duma election, in fact, after the stage of candidate nomination. Predictability, on the contrary, should imply that the period during which REV may be conducted, as well as the mechanism for implementing this form of voting, should be determined well before the start of voting, in this case, before the start of the election campaign itself. Predictability should allow candidates, parties and voters to understand how e-voting will be organized and what measures will be used to ensure it is properly enforced.

As a result, the participants in the electoral process either have no way of knowing of REV and are put before the fact that the election campaign has already started, and, as a result, cannot fathom how exactly this form of voting will affect the realization of their constitutional rights, or have to take into account the new electoral rules in a fairly short period of time. There is no definite time period required for letting the participants in the electoral process adapt to changes. As a result, candidates are unprepared for the new form of voting, and their sustainable and recognized status depends on the discretion of administrative bodies.

Departure from the principle of predictability also violates the principle of legitimate expectations, according to which the state, when regulating, is obliged to take into account, to the greatest extent possible, the justified expectations of citizens that have developed based on previous regulation [35; 26]. Participants in electoral relations acting on the basis of the law should not be deceived in their legally valid expectations. It is obvious that over a reasonable amount of time before the appointment of elections, as well as during the election campaign, candidates and parties presume the invariability of their status, especially the scope of rights and obligations, without assuming that they will be changed. In other words, candidates and parties make their plans based on how paper voting mechanisms will work, i.e., they assume that the regulation of the electoral process will remain unchanged until the end of the election campaign.

2.3. Stability of regulation

The standards of predictability and stability are closely related and practically inseparable, legal scholars sometimes do not distinguish them: it is obvious that there can be no stability without predictable regulation and vice versa. Both standards entail that the state's actions are reasonably foreseeable and are also related to ensuring the constitutional principle of equality. In this case we will adhere to the approach of the Venice Commission: the standard of foreseeability implies that the wording of the law is clear, precise and accurate, allowing the participants in legal relations to coordinate their actions with it, foresee the consequences of their actions and so on, and the standard of stability implies that the established rules of behavior will remain unchanged for a reasonable period of time, and in case of changes in regulation, citizens will have time to coordinate their actions with the law. Predictability concerns the arrival of REV as a form of voting in general, as well as its regulation at the time of the election campaign itself. Stability refers to the already fait accompli of REV manifesting in the regulation and its subsequent change throughout the election campaign.

It should be noted that de jure legislative regulation of REV can be called stable: the provision on the CEC's right at its discretion to make a decision regarding REV is found in the Law "On Basic Guarantees..." in 2020, i.e. a year before the 2021 Duma election. The 2021 and 2022 amendments to this law were also legally settled before the 2024 presidential election. Therefore, when we talk about regulatory stability being violated, what we mean is REV being regulated by other bodies with administrative powers, primarily the CEC.

The main challenge of regulating key aspects by an act of an administrative body instead of a law is apparent: while the adoption of a law takes into account as many opinions and points of view as possible (at least formally), and the process itself takes time to harmonize and take into account these points of view, the will of the administrative body itself is sufficient to adopt or amend an act of the CEC. The CEC has no de jure obligation to consider alternative opinion or to engage with the public when regulating such issues, i.e. there are no natural checks in the form of political parties or the public. Moreover, the law itself does not oblige the CEC to do so. Since REV is regulated by an act of the CEC and not by law, the acts of such a body are not subject to the requirement of stability of legislative regulation: the CEC can not only make a decision on the REV procedure at any stage of the election campaign, but also change the acts regulating REV throughout the election campaign as well, without having to coordinate them with any other institution. That said, the REV procedure for the 2021 State Duma election was changed several times, with the last change dated September 3, which is 14 days before the first voting day.

Another example is the attempt to regulate Moscow's REV information system in 2021. Thus, the Resolution of Moscow Government No. 1418-PP "On the state information system 'Remote E-Voting System'" was adopted on September 13, 2021, that is, 4 days before the first voting day (September 17). Moreover, the resolution itself was not published until September 16 [44], the day before the first voting day. The latter enables us to establish both the issue of stability of regulation and the issue of publication of such acts: according to Article 15 ( Part 3) of the Russian Constitution, any normative legal acts that affect the rights, freedoms and duties of man and citizen cannot be enforced unless they are officially publicized for general awareness.

In its Resolution No. 1565-O of July 3, 2014, the Constitutional Court indicated that the stability of the electoral legislation acts as a guarantee of equality of citizens, and when making fundamental changes, it is necessary to avoid that they are carried out in a timeframe that does not allow for timely consideration of new election rules, therefore, does not allow for equal opportunities to participate in elections [47]. In this resolution, the Court also emphasizes that failure to comply with the requirements of stability of the electoral legislation may not only call into question the nature of free elections, but also "create electoral advantages for certain political parties, who, as a rule, hold a majority of deputy seats in the legislative body of state power" (emphasis mine – I.B.). For example, if we look at the results of voting for bills in three readings on the REV experiment in Moscow in 2019 [51], on Clause 14 of Article 64 of the Law "On Basic Guarantees..." [52], as well as new amendments to Article 64.1 of this law [50], we will find that the votes of the United Russia faction alone were sufficient for its adoption.

In a number of other decisions, the Court states that the regulation of electoral law should not create arbitrary obstacles to the freedom of activity of candidates, "all the more motivated by the goals of eliminating competitors in the electoral process" [42; 48]. We believe it is also necessary to consider the position that is in the same vein applicable to the electoral law: "creating by means of amnesty the conditions for exemption from criminal liability of those persons who participate in the decision to declare amnesty is unacceptable" [31] (emphasis mine – I.B.).

Consequently, deviation from the standards of stability and predictability means deviation not only from the principles of the rule of law and equality, but also from the constitutional guarantees of political competition (Article 13, Parts 1 and 3, of the Russian Constitution).

2.4. Accessibility of the normative act

The accessibility standard assumes that any citizen can freely refer to the text of a normative act to get a clear understanding of the relevant regulation [9]. One cannot speak of the clarity, precision, accuracy or predictability of a law if the citizen has no opportunity to study its text. This principle is expressly provided for in Article 15 (Part 3) of the Constitution, according to which any normative legal acts that affect human and civil rights, freedoms and duties may not be applied unless they have been officially published for general information.

On the one hand, such a claim sounds far-fetched: the texts of the REV laws, as well as the acts of the CEC, were officially made available to the public. On the other hand, the specificity of REV is that a significant part of electronic processes (for example, vote counting) takes place out of sight of the participants of legal relations, that is, the process is hidden in the digital space so to speak. Consequently, the digital tools used (such as the unified standard, GOST), source code, encryption and cryptography methods, actually fulfill the role of a normative act, meaning a law that regulates the electoral legal relationship with REV. Consequently, the same accessibility standard applies to such instruments as if the instruments were a normative legal act. Anything else means that the act is inaccessible to the participants in legal relations, and therefore violates the standards of legal law. The measure of publicity of such quasi-normative acts should be the result of a consensus of the expert community, which would allow to make sure that the source code is properly operational. In any case, such publicity is required, otherwise it would mean a violation of the principle of accessibility of the act.

The issue of accessibility of the acts was raised in the lawsuits and complaints of the applicants, but never reflected in the court verdicts. For instance, M.Lobanov's (included in the register of foreign agents) complaint to the Constitutional Court on the "REV Case" stated that in terms of ensuring the secrecy of the vote, a unified standard (GOST), including one regarding cryptography, which protects the votes from being altered, either does not exist at all or is not available in the public domain [53]. In its ruling, the Constitutional Court ignored almost all of the applicant's arguments, which is evident when one compares the text of the complaint and the text of the ruling [3; 49]. The issue of uniform standards and their non-public nature was subsequently raised in a lawsuit in the 2022 municipal elections. When challenging the vote returns, one of the municipal candidates pointed out in his lawsuit that the legislation does not list the internal and external characteristics of REV system, and the system used lacks a concluding report and certificate of attestation or certification indicating it is suitable for use in elections [1]. A similar issue was raised in an administrative lawsuit challenging the vote returns in the 2023 Moscow Oblast gubernatorial election. The applicant indicated that there were no copies of certificates and attestations for REV software and hardware system (hereinafter REV SHS) and the "Public Services Portal of the Russian Federation" (hereinafter PSPRF), including on their compliance with security requirements, although Clauses 6 and 19 of Article 64.1. of the Law "On Basic Guarantees..." include the requirement to certify and ensure information protection requirements, which are established by federal executive authorities responsible for security and technical protection [2].

It can be assumed that the absence of such certificates in the public domain is justified by security considerations and aimed at protection against interference, or in principle their publication or public access is impossible. In such a case, we can speak of a conflict between the principle of accessibility and publicity and the very nature of REV. In other words, the contradiction is not in form, but in content.

2.5. Limits on the discretion of public authorities

Constitutionalism as an idea and practice about limitation of power is based on the fact that the discretion of the holders of public power cannot be unlimited, the power must be strictly limited on the basis of the constitution and laws. The Constitutional Court of Russia pointed out that legal certainty implies that the legislator must establish with a sufficient degree of accuracy the limits of administrative discretion and standards for the implementation of the powers of state bodies [38], and the very possibility of unlimited discretion inevitably leads to arbitrariness, violation of the principle of equality and the rule of law [20; 25; 17; 23; 33; 18]. The Constitutional Court emphasized another important principle: public authorities and their officials are allowed to do only what is directly prescribed by the Constitution and the law, and anything else contradicts the principle of separation of powers [30]. What follows from this provision is that the public authority cannot grant itself powers that are assigned to it specifically, nor can it appropriate them: all powers must be clearly inferred from the law. Even if parliament, as a body restricted only by the constitution and not by other laws, grants unlimited discretion or limited power to any body, formally acting within its competence, it would still be a violation of the constitution, the standards of legal law, and the principle of separation of powers.

Clause 14 of Article 64 of the Law "On Basic Guarantees..." did not set limits on such discretion, on the contrary, vested the CEC with full discretion over REV. Let us expand this thesis: what matters to us is not only that the law de jure set no limits, but that it actually sanctioned the capacity of the CEC to "take as much power" as necessary to organize REV. In other words, it sanctioned a discretionary appropriation of any power by an administrative agency. We concur with E.I.Kolyushin that such concentration of powers contradicts the very nature of electoral bodies as law-enforcing bodies, rather than creating effectively new norms [10].

In the case of the new Article 64.1 of the Law "On Basic Guarantees..." the situation changed only a little: according to Clause 2 of this article, the decision to implement REV at elections to federal bodies of state power is made by the CEC, and according to Clause 4 such a decision at the level of a constituent entity of the Russian Federation and at the municipal level is made by the corresponding election commissions in coordination with the CEC. In other words, the defunct Clause 14 of Article 64 is mechanically transferred to the new article, preserving an equally broad discretion of electoral bodies to decide on REV, including at any point in the election campaign. Two other electoral laws — on the State Duma and presidential election — only refer to the provisions on REV in the Law "On Basic Guarantees...".

Although Article 64.1 contains more information on regulating REV than its "predecessor", one cannot simply state that the limits of administrative discretion are clearly defined: Article 64.1 contains only a number of procedural aspects and does not regulate all REV procedures substantively and completely. The powers of the CEC and election commissions of the constituent entities of the Russian Federation were never defined with sufficient precision and clarity to comply with the principle of "only what is provided for by the Constitution and the law". This argument can be countered by the fact that the powers of election commissions are already listed in Chapter IV of the Law "On Basic Guarantees...", but these powers are not adapted to the specificity that REV brings to the electoral process.

For example, the CEC resolutions on REV procedure for the 2021 State Duma election and the 2024 presidential election provided for the establishment of REV TECs, the use of observer nodes, and, in the case of the presidential election, the use of electronic voting terminals (EVTs). These powers either follow from the Law "On Basic Guarantees..." occasionally or not at all. In other words, the CEC independently endowed itself with a number of public powers. Let us consider the issues separately.

Clause 8 of Article 26 in the law "On Basic Guarantees..." provides for the right of the CEC and election commissions of the constituent entities of the Russian Federation to form one or more TECs to conduct REV, but does not provide for their specific powers. Obviously, the specification of such REV TECs requires specification of their powers, which are not available to TECs for paper-based voting. The mentioned CEC resolutions on the REV procedure do not define their powers in a sufficiently specific and clear manner either. This creates a situation in which the undefined and broad powers of the CEC to organize and conduct REV are transferred to an election body with equally undefined competence. We have already mentioned that the competence of any body vested with public powers cannot be unlimited and must be clearly defined. The broad discretion of the CEC in REV matters is of questionable nature from the point of view of law, so we are confronted with a violation of the principle "nemo plus iuris transferre potest quam ipse habet" — no one can transfer more rights than they themselves have.

Whereas the REV TEC is referenced in the law, the observer node is not in the law at all. The observer node as a specialized device and software was expected to provide the ability to observe REV. However, the capacity of such a node, its legal status, does not follow either from the law or from the CEC regulations on REV. The node is mentioned only twice in the 2021 resolution and five times in the 2024 one, but in either case there is no description of the functionality and capabilities of the observers. As a result, the tool intended to ensure transparency of REV surveillance is not regulated at all.

The EVT issue is similar to the observer node problem: the law does not describe such tool or capability. However, it is mentioned in the 2024 REV regulation [15: Clause 11.1.3.1]. Neither the law nor the CEC act provides for the proper functionality of this form of voting, its guarantees of transparency and security. In other words, what we have is a procedure that is not envisaged by the electoral legislation and a de facto appropriation by the CEC of the lawmaking function, which also violates Article 10 of the Constitution on the principle of separation of powers.

The definition of electronic voting in Article 2 of the Law "On Basic Guarantees...", i.e. voting without the use of a paper ballot using a technical means, could be an argument against such a statement about EVT. Then again, the definition of REV in the law is not much different either: voting without a paper ballot using special software. However, EVT is mentioned in the CEC regulation on the procedure for remote e-voting specifically. It appears that the only difference between e-voting and its remote form is the presence of hardware or special software. Therefore, if electronic voting at the polling station includes the use of specialized software, it would no longer be subject to the electronic voting regulations and should be subject to the REV standards. At least that is what the current provisions impy. There are no other provisions in the law.

That said, the use of EVT is stipulated for direct use at the polling station. Therefore, the use of EVT as a form of REV at the polling station violates the very logic of remote voting, that is, outside the polling station. As a result, the CEC did not just substitute the legislator, but actually created a provision that is in direct contradiction with the law.

2.6. Who can regulate REV?

Although the question seems obvious, I believe it requires its own subsection. Most of the arguments in this section emerged from the discussions at the Public Law Club, and I would like to extend special thanks to discussion participants, including P.A.Larionov and an unnamed student from HSE in St. Petersburg.

The unlimited administrative discretion of election commissions allows us to argue that the latter act as a de facto regulator of REV, substituting for the legislator, while the acts of the CEC de facto fulfill the role of law. One can object to this argument by stating that the legislature itself delegated all matters to the respective election commissions. However, can REV be regulated by any act other than the law? What we would like to use an axiom is that it is the CEC and, in some cases, the election commissions of the constituent entities of the Russian Federation that serve as the actual regulator of REV. It makes no sense to argue otherwise: even the existing regulation in the form of Article 64.1 of the Law "On Basic Guarantees..." can hardly be called complete.

According to Article 71 (paragraph c) of the Russian Constitution, the Russian Federation is responsible for the regulation and protection of human and civil rights and freedoms, and, as a consequence, electoral rights. In accordance with Article 76 (Part 1) of the Constitution, federal laws shall be adopted on subjects under the jurisdiction of the Russian Federation. Consequently, such a view would already suggest that REV should be regulated by federal law alone, and that no other regulator is allowed by the Russian Constitution. However, representatives of the academia in a typically cunning manner try to refute this approach by saying that the Constitutional Court of the Russian Federation and the Constitution of the Russian Federation allow for delegated legislation. A different approach would mean that we deny the nature of the federal bylaws. For example, the Constitutional Court emphasized the following in Resolution No. 2-P of January 27, 1999 on the issue of the system and structure of the federal executive authorities being regulated by the President rather than the State Duma: "The mere attribution of a particular issue to the jurisdiction of the Russian Federation ... does not mean that it cannot be regulated by normative acts other than law, except in cases where the Constitution of the Russian Federation itself excludes this, requiring the adoption of a federal constitutional or federal law to resolve a particular issue" [27]. In the Resolution of May 31, 2005 No. 6-P the Constitutional Court also pointed out that the legislator delegating to the Government a number of powers does not in itself contradict the Constitution of the Russian Federation. However, it is only if such delegation is based on the principles of separation of powers and inadmissibility of limitation of rights and freedoms by acts below the level of federal law [37].

We believe one cannot mechanically apply this approach to electoral legal relations for a number of reasons. First, in the case of the Resolution of January 27 ,1999 No. 2-P, it was rather a question of anticipatory rule-making: as long as a number of issues are not regulated by law, the President may adopt an act before such law is adopted. In the case of electoral legal relations, the law is present, which makes this example is no longer relevant. Second, such an approach would mean a violation of the principle of nemo judex in propria causa — no one can be a judge in their own case, i.e. electoral issues should not be regulated by bodies with vested interest in the outcome of elections, such as the President or the Government, who have vested interest in the outcome of the will, which in itself increases the risks for political competition. We do not consider election commissions as an alternative, as the latter by their nature are rather law enforcement bodies and cannot create new norms. Third, according to Articles 81 (Part 4) and 96 (Part 2) of the Constitution of the Russian Federation, the procedure for the election of the State Duma and the President is established by federal law. Therefore, the norms on REV applicable to the State Duma and presidential elections should also be regulated directly by law. Fourth, the principle of separation of powers and people's power would be violated: forming the government bodies is a matter that cannot be decided without the will of the people as the only source of power, and the only representative body is the parliament. Fifth and final point: as the Constitutional Court of Russia pointed out in Resolution No. 6-P of May 31, 2005, rights and freedoms may not be restricted by an act below the level of a federal law. This argument follows directly from Article 55 (Part 3) of the Russian Constitution. Consequently, a broad discretion to organize elections and REV in particular by a non-legislative body would mean that rights are restricted not by law but by another act, which is expressly prohibited by the Russian Constitution. In case regulation for the REV issues were still provided by another act, for example, an act of the CEC, the problem is aggravated by the fact that such acts cannot be subject to normative control in the Constitutional Court of the Russian Federation (Article 125 of the Russian Constitution).

3. Constitutional principles of free elections

In the previous section, we analyzed the basic conflict between the standards of legal law and REV. We believe that the outlined standards and criteria can be used as a kind of test for the compliance of REV with the standards of the rule of law, effectively as a constitutionality test. But then, we are only addressing a defect in its legal framework, without addressing a number of deep substantive issues. The constitutionality test cannot be limited to an assessment of form and has to imply a semantic dive into the text of the REV act. In our opinion, the test for constitutionality is impossible without checking for compliance with the constitutional principles of free elections: secrecy of the vote, openness and publicity, equality of candidates, organization of elections exclusively by commissions.

3.1. Violation of the principle of secret ballot and the possibility of voting for others

The principle of secret ballot is the fundamental basis of the principle of free elections enshrined in Article 3 of the Constitution and means that the choice is made by citizens freely, without coercion, intimidation or bribery, when it is impossible to establish a link between the vote and the voter themselves. The Council of Europe Recommendations also stipulated that the use of electronic voting systems should not allow the state to attribute results to individual voters [5]. Enshrining this principle for REV should mean the creation of an organizational, technical and information infrastructure that would be similar to the protection of secrecy in paper voting.

During the 2021 State Duma election, the Law "On Basic Guarantees..." did not contain any specifics of regulation of the principle of secret ballot in relation to REV. At that time there was a special Law "On Experiment...". According to Article 3 (Clause 8) of said law, the secrecy of the vote should be ensured, the procedure of voter identification should be provided for while taking into account the requirements established by the Law "On Basic Guarantees...". The latter merely contained a blanket reference to the CEC act on the order of REV. The new regulation is also not much different: although Article 64 (Clauses 15-17) contains steps such as authentication and identification of the voter, anonymization of the voter's choice, etc., they are only postulatory in nature and can hardly be compared to a similar regulation for paper voting. It does not follow from these provisions how exactly the secrecy of the vote will be protected.

In the procedure stipulated by the CEC acts, such authentication and identification is carried out through Gosuslugi portal. The identity of the voter is confirmed by a confirmation code sent via SMS to the voter's number (on behalf of the portal). In other words, the only tool that allows the voter to verify that he or she is identified by the system and can access the electronic ballot is the SMS code. It is assumed that only the voter has access to such a text message. In this case, the voter himself cannot verify that his or her vote is recorded and registered, and the observer cannot verify that the ballot paper was received directly by the voter. In the same manner, both subjects of electoral legal relations cannot make sure that the voter's submitted vote will not be subsequently linked to his or her identity through Gosuslugi.

While in the case of paper voting a passport serves as the method of identification (as required by the Law "On Basic Guarantees..." in Article 64, Clause 5), and an observer can ensure that the identification and voting procedures are properly followed, only a text code and formal guarantees that the voter's identity will not be disclosed later are sufficient for identification in REV. The legislator and the CEC apparently believe that a simple Gosuslugi account is enough to presume that: 2) the ballot is received directly by the voter, and 2) the portal ensures the secrecy of the vote. However, if the procedure does not allow the voter and observer to ascertain whether a ballot is issued to a particular voter, if there is no way to link the voter's act of will to his or her identity, such a procedure can hardly be called transparent. When voting via Gosuslugi, a voter is issued a one-time automatically-generated electronic signature, which is destroyed immediately after voting. Such a signature, along with a SMS-code, acts as an "electronic identification". In fact, the CEC created an alternative and non-statutory voter identification system, with said system lacking the same safeguards as paper voting. Identification through Gosuslugi does not prevent unauthorized persons from voting using the voter's account.

Threats to the principle of secret balloting may also be posed by unique numbers assigned to the ballot that are associated with the voter's name and address. The unique number of such a ballot already in itself means the hypothetical possibility of revealing the secrecy of the vote, primarily to someone who has access to the REV infrastructure and system. The operator of the latter in Moscow is an executive authority — Department of Information Technologies of Moscow. On the one hand, the unique numbering may threaten the secrecy of the vote, while on the other it is necessary to confirm that it is the voter who votes and is needed to avoid uncontrolled "ballot stuffing" of electronic ballots. It follows from the latter that the concept or REV requires polishing.

The problem of violation of the principle of secrecy of the vote may also be in the following. First, in the use of the unique address of the Internet user (IP-address), which is known to the operator of the Gosuslugi portal, and thus the voter and his or her will can be disclosed. There is no guarantee or instrument of protection against such a thing established by regulation. Second, user logins and passwords are available to the operator of Gosuslugi, and the voter cannot check whether his or her account was used by the voting portal operator. In this case, it is not at all possible to be sure that it was actually the voter who cast the vote. Despite the fact that we have identified the above reasons as the main ones, there can be quite a lot of violations of the said principle, for example, with the help of duplicate SIM cards: it is practically impossible to verify such "interception", and the impossibility of verification calls into question the principle of secret ballot.

Even if we assume that there were no direct violations of the secrecy of the vote, such an assumption does not solve the main problem: the voter and observer have no way to verify this, they lack the proper normative tools. The scope of rights and guarantees that relate to the secrecy of the vote in the Law "On Basic Guarantees..." are predominantly applied to paper voting. It is not enough to simply enshrine the principle of secret ballot for REV and presume that it is not violated until proven otherwise. The relationship between the public authority and the individual is based on the opposite principle: in disputes between the individual and the public authority, it is the latter that has the burden of proving the legality of its actions, and any doubts of the individual about the legality of such actions are interpreted in favor of their illegality. In other words, all presumptions and doubts are placed on the individual, while at the same time the public body is presumed liable until proven otherwise. Consequently, in disputes about the defectiveness of REV, the state has the burden of proving that all feasible steps were taken to protect the secrecy of the vote, while fair and objective doubts mean that the secrecy of the vote is not protected at all or the existing protection is inadequate.

It is worth noting that REV supporters often use a versatile argument: no evidence of a violation of the secrecy of the vote was presented. As we indicated above, a person's doubt alone as to whether the secrecy is protected is sufficient to presume the liability of the public body. The requirement to prove violations of secrecy of the vote from a voter or observer in itself seems absurd, at least due to legal logic, at most due to impossibility, since the voter and observer do not have full access to the REV infrastructure.

3.2. The principle of openness and publicity

The Constitutional Court pointed out that the constitutional meaning of the right to vote is not limited to formal participation in voting, but covers a wider range of legal relations related to the counting of votes, establishment of results, determination of results, as well as observation [18]. Consequently, the exercise of active suffrage encompasses the right to observation: the former is impossible without the latter, and the absence of observation calls into question a number of crucial electoral procedures. In paper voting, the observer has a substantial toolkit to ensure that such procedures are followed in at the very least that the secrecy of the vote is maintained by the state or that the votes are properly counted. Despite the complexity of the electoral legislation, civil society and election commissions have developed numerous methodological materials on observation. A key characteristic of observation as an element of active suffrage is its accessibility and simplicity: an observer, like a voter, may not have specialized knowledge of election procedures. The legislation should be structured in such a way that it is possible for a person without specialized knowledge to observe elections. If there is no such accessibility, one can hardly speak about the effective realization of the right to vote. In such a case, the right to observe becomes the exclusive right of quite a limited circle of specialists and experts, which means we can claim a violation of the principle of equality.

With regard to bankruptcy legislation, the Constitutional Court set forth the position, which, in my opinion, applies to the present issue: "the insufficiency of special technical knowledge of the participants of specific legal relations can and should be compensated by normative regulation, implemented on the basis of such knowledge" [24]. REV observation is inherently impossible without specialized technical knowledge: a potential ideal observer, in order to verify the openness and transparency of the REV system, has to possess comprehensive knowledge in areas such as mathematics, encryption, blockchain, programming, digital communications, etc. In other words, such observation presupposes the work of diverse specialists, without whom observation is impossible. The actual requirement of specialized technical knowledge for REV is not counterbalanced by sufficiently detailed regulations that would allow observation without specialized knowledge. Moreover, the legislation on REV observation is not regulated at all, and the provisions of the Law "On Basic Guarantees..." relate mainly to paper voting and are hardly applicable to REV observation.

The only tool for REV observation is provided only at the by-law level and is not mentioned in the law, tool being the observer's node. The CEC acts on the REV procedure are limited to stating that such a "node" is handed over for observation (e.g., in the CEC resolution on the REV procedure in the Duma election — clauses 10.1 and 11.10.01, in the CEC resolution on the REV procedure for the 2024 presidential election — clauses 10.7 and 11.10.4). There is no description of its functionality, the observer does not get full access to the necessary electronic processes, and even if they do get partial access, it is impossible to be sure that it allows to fully trace potential violations. As a result, it is impossible to ascertain whether the node allows observers to effectively do their job. The node also fails to address the issue of accessibility of observation for those without specialized technical knowledge. Therefore, there are no guarantees of observation, and thus of the realization of the principle of openness and transparency of elections, even if the observer has the relevant special knowledge.

The recommendations on public observation of REV posted by the Public Chamber of the Russian Federation [14] do not solve the problem either. While such recommendations are important, they are only appropriate if REV itself is properly regulated and legally substantiated. Without the criteria of legal certainty, such recommendations and standards are meaningless both factually and legally.

The problem of observers lacking technical knowledge and the unregulated functionality of the observer node is complemented by another problem: access to information. In the case of REV, Articles 24 (Part 2) and 29 (Part 4) of the Russian Constitution become relevant: without access to information that affects rights and freedoms, and without the right to freely seek, receive, transmit, produce and disseminate information, it can hardly be said that the principle of openness and publicity is fully observed. Information regarding the REV system is not publicly available, observers are deprived of the opportunity to trace real violations, and their assumptions about violations are in fact unproven. The issue of transparency and publicity partially overlaps with the already described issue of accessibility of REV regulations (section 2.4 of this paper): a number of data and information necessary for effective observation are not publicly available, which makes it impossible to fully realize both the active suffrage and the right to access and freely receive information.

Unlike violations in paper voting, REV violations are not as obvious and cannot be verified without specialized knowledge or the proper tools. Moreover, there is no clear understanding among observers of how exactly and according to what standards REV should be observed: it should be emphasized that the algorithms ensuring the secrecy of voting and the accuracy of vote counting were never officially published, and those that were used were never approved by the state standard. Even if we assume that an observer with proper knowledge gains access to the REV system, they can only guess what state standards, encryption and security methods are used, whether such standards allow for secrecy of the vote and a number of other electoral safeguards. Therefore, the lack of special technical knowledge, normatively regulated instruments of observation, makes it impossible to implement the principles of publicity and openness of the electoral process and at the same time acts as a limitation of the active suffrage.

3.3. Principle of equality of candidates

The constitutional principle of equality is also reflected in electoral legal relations. In this section we will focus on the principle of equality of candidates, making a reservation that the principle of equality in electoral relations is much broader and is not limited only to candidates and parties as the main subjects of such legal relations. This principle implies that candidates have a unified legal status and equal opportunities to participate in the election campaign. Artificial obstacles created by the state or, on the contrary, advantages for a number of candidates violate this principle and are discriminatory. Consequently, in order to implement this principle, the Law "On Basic Guarantees..." provides for a number of essential elements of the candidate's status in elections, such as the right to be present at all sessions of the election commission, during the counting of votes, during the work with electoral rolls and ballots, and during the counting of votes (Article 30, Clause 1). In order to protect his or her rights, a candidate may appeal both against actions or inactions of election commissions to a higher commission and to the court.

However, this list of rights primarily affects paper voting, where alleged violations can be traced and presented to the court as evidence. For example, the right to be present during the counting of votes is negated by the fact that the entire counting process takes place out of the candidate's physical sight, which means that the candidate has no opportunity to ensure that votes are counted properly and that all safeguards are respected. A similar problem arises with other guarantees: the formal presence of a candidate can be arranged, but this right cannot be exercised in a meaningful way. In our opinion, a more serious threat is the problem of appealing against decisions of election commissions as an element of guarantees of judicial protection (Articles 45 and 46 of the Russian Constitution). This is a subject that needs to be explored in more detail. What we would point out is that the candidate in such a case can only assume that there were violations, but cannot trace and present them to the court because the entire process is inaccessible to the candidate. Consequently, a candidate can neither prevent violations nor appeal them.

Consequently, a departure from the principle of equality can be observed in the following. First, there is the disparity in candidate eligibility in locations where REV is either used or not. Obviously, candidates in territories that exclusively use paper ballots have more rights compared to those nominated in territories where REV will be used. First of all, this applies to federal elections: the scope of a candidate's rights is reduced depending on the constituent entity that decided to use REV. In particular, during the 2021 State Duma election, REV was used only in the territories of Moscow and Sevastopol, Kursk, Murmansk, Nizhny Novgorod, Rostov and Yaroslavl Oblasts. The mere fact of using REV cannot be an objective ground for abandoning the principle of equality, discrimination and impairment of candidate eligibility. One would be able to consider the elimination of such disproportions in the scope of rights if REV was used all over Russia, but in such a case one would have to refer not so much to the violation of the principle of equality (Article 19 of the Constitution of the Russian Federation) as to the impairment or restriction of rights and freedoms (Parts 2 and 3 of Article 55 of the Constitution of the Russian Federation).

The second is the disparity in candidate capabilities in REV. If we are referring to (1) REV being used all over Russia, or (2) only to candidates in constituencies using REV, the departure from the principle of equality might be as follows. As we indicated earlier, in order to properly understand how the REV system functions, participants in the electoral legal relations have to understand not only election laws, but also the basics of programming, blockchain, encryption, mathematics, digital communications, etc. Consequently, in political competition, the favoured candidates are those who (1) either have the proper level of knowledge and competence in the specified areas, (2) or have the proper financial ability to hire specialists in the specified areas. In such a case, the scope of a candidate's powers is determined not by his or her equal legal status, but by his financial resources and his or her campaign budget.

The latter argument can be countered by the fact that the Russian Constitution and laws do not guarantee equal campaign financing. On the contrary, candidates and parties are responsible for independent fundraising, which means a candidate with more financial resources can print more campaign materials, hire more specialists, etc. However, this counterargument is not entirely correct: in the case of REV, a candidate with fewer financial resources is effectively deprived of the right and opportunity to verify that the REV system is transparent and that due rights and guarantees are respected. In other words, the powers of a candidate are determined by the size of his or her campaign fund, which directly contradicts both the principle of equality (Article 19 of the Russian Constitution) and a number of other constitutional provisions (especially Parts 2 and 3 of Article 55 of the Russian Constitution).

3.4. Organization of elections exclusively by election commissions

On the one hand, it may appear that the requirement that elections be organized exclusively by election commissions is fulfilled: the law transfers broad discretion to the CEC and the election commissions of the subjects, and the CEC has the right to establish REV TECs. In the Law "On Basic Guarantees ..." this principle is enshrined in Article 4 (Clause 7) and also includes the prohibition of public authorities, organizations and citizens to interfere in their activities. The basic principle of organizing elections exclusively by election commissions has an explicit goal: election organization should be handled by a body that is equally removed from the legislative and executive branches of government, which may have some interest in the outcome of elections.

Formally, the acts on the REV procedure and laws do not provide for the participation of other bodies in the organization and conduct of REV, but the reality is different. For example, to vote by REV, a voter uses a personal Gosuslugi account, and a personal account on the regional online portal in the case of Moscow. The operator of such a portal is the Moscow DIT [45: c. 2.1]. Operator status means that DIT manages the portal, ensures functioning, creates proper information infrastructure, software, etc. In other words, the "platform" for voting belongs to the executive authority and is controlled by it. Consequently, the act of expression of will is actually performed by the voter not in the election commission and its resources, but through the executive body. After a voter casts a ballot, his or her vote is "deposited" on a server developed and presumably controlled by the Moscow DIT, after which it undergoes encryption and decryption procedures. Election commissions in this case receive only the complete and final result, but do not participate directly in the vote count and have no control over such procedure, receiving only copies of electronic protocols. In other words, the key powers of the commissions to count votes de facto belong to the executive branch and are not under the control of the commissions. Election commissions, unlike the Moscow DIT, do not have exclusive access to the portal servers and its infrastructure, and thus are deprived of the actual opportunity to verify compliance with due constitutional guarantees of free elections.

Therefore, identification of a citizen, receipt of an electronic ballot, verification and vote counting are carried out by one and the same entity, which is under the control of an executive body and is not an election commission, and thus the functionality of the Moscow DIT can hardly be called supporting. It is rather the role of election commissions to play a supporting role in such a case. Ironically, enshrining a broad and unlimited discretion of election commissions in the Law "On Basic Guarantees..." did not bring about flexibility in the REV regulation or stronger election commissions. On the contrary, it resulted in a de facto transfer of electoral powers to an executive body, i.e., the opposite of the intended result. Therefore, the broad discretion of the election commissions in the process of regulating REV is gradually turning into a broad discretion of the executive branch.

Conclusion

The debate about the quality of laws and their compliance with the rule of law is hardly a popular one: a rule-of-law state and the rule of law are very often taken for granted and as something that does not require extra attention. Very often these principles are perceived as something very general and incomprehensible even to legal scholars themselves. This paper has attempted to revisit the issue of legal laws and law in general as a measure of freedom and justice. In this case, the legal framing of REV served as a case study to demonstrate the importance of such principles in everyday life and the challenge that arises when they are absent from the regulatory framework. The issue of normative regulation of REV made it possible to systematize the already existing, but rather disjointed standards, to express them in relation to electoral legal relations, first of all, to a phenomenon such as REV. Two tests were developed for the purposes of this paper — the legal law standards test and the constitutional free election principles test — which in combination can be referred to as the REV constitutionality test. It should be noted that this test can also be used for a number of other legal relations, not only electoral ones. Constitutionality issues are the starting point for any legal discussion, especially when that discussion concerns an area such as voting rights. By passing the first test in stages or using both tests in alternation, one can arrive at the assertion that there is currently no proper legal framework for REV.

Received 01.06.2024.

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