On the Legal Assessment of the Gravity of Electoral Legislation Violations (Ours and Theirs)

Buzin A.Yu.

Abstract

A remark on Ivan A. Brikulsky's piece "The US Constitution and Postal Voting: Why Did Trump Turn Out to Be Right?" The central question in court cases to overturn an election or vote returns is the extent to which the violations brought before the court distorted the will of the voter. This question is extremely complex. When it comes to incorrect counting or ballot rigging, it would seem that violations can be quantified. Even then, however, concealing the data or the counting algorithms will not allow a quantitative estimate to be made. It is all the more difficult to assess the impact of violations committed at earlier stages of the election campaign—during candidate registration or campaigning. What should a court do when reviewing an alleged violation? Despite the difficulties described above, it must assess the degree to which these violations affected the final result. When deciding to cancel the election result, the court must decide: will such a cancellation be an even greater violation of electoral rights than the violations themselves? After all, cancelling the election result (and thus vote returns) implies neglecting at least part of the votes cast. This is, in fact, what the US court did in the cases at hand. The author of the article under discussion reprimands the US court for not overturning the election result based on a number of recorded irregularities. Moreover, he believes that the violations were the result of bylaws issued by state secretaries. In his view, the court should have overturned the election result because he considers the acts of the state secretaries as administrative interference and postal voting itself as flawed in many ways. This paper contains objections to all of these assumptions.

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decisions Brikulsky's piece [1] is of interest primarily because it provides insight into the approach of US courts to resolving electoral disputes, which contrasts strongly with the approach of Russian courts. That said, the contrast lies in the fundamental issue of assessing the importance of law violations in deciding whether or not to cancel the vote returns or the election result.

In this regard, the Russian legislation contains a provision that requires to cancel the vote returns or the election result "if the committed violations do not allow to determine with certainty the results of the expression of the will of the voters" (clause 1.4 or subclause "e" of clause 2 of Article 77 of the Federal Law No. 67-FZ "On Basic Guarantees of Electoral Rights and the Right to Participate in Referendums of Citizens of Russian Federation" of June 12, 2002). This wording is not completely definitive and in specific cases allows Russian courts to make very dubious assessments as to whether the results of the expression of the will of the voters can be reliably determined. There are many court decisions in which, after listing specific violations, the court concludes that it does not consider these violations "not allowing to determine with certainty the results of the expression of the will of the voters."

In the United States, the situation is exacerbated by the lack of uniform electoral legislation. Election rules are determined by state laws, and it is unlikely that they — just like the ones in Russia — define exactly what and how many violations are sufficient to overturn election results. Courts are used to resolve disputes. To resolve electoral disputes fairly, it is necessary to use a court that is completely independent of the election organizers, which, alas, is not the case in Russia.

The author of the article under discussion expresses his views on the decisions of US courts in lawsuits that sought to overturn vote returns on the basis of committed violations. The author believes that these decisions were unfair and unconstitutional. In my view, the paper does not provide sufficient grounds for such an assertion, which I will try to justify below.

The author's first and foremost mistake is to claim that the court did not condemn:

a) postal voting as a method of voting that does not provide sufficient guarantees of voting rights;

b) the interference of state secretaries in the legislative process.

Such a condemnation, however, would mean going far beyond the claims, which is not common judicial practice. The court's objective was to consider the evidence presented, assess its consistency/inconsistency with the law, and evaluate its the process of establishing the result was negatively affected.

What would have happened if the court had been to evaluate postal voting itself? Its drawbacks and merits are, and will be for a long time, the subject of expert debate, and it was hardly possible to lump together the consequences of law violations and the drawbacks of the law itself. By the way, it seems to me that the section discussing the disadvantages of postal voting is redundant, although the author's desire to keep this section is quite understandable in the context of implementing remote voting in Russia. But that is a topic for an entirely different debate.

As for the interference of state secretaries, as far as I know, in most American states they are responsible for organizing elections. This means that they are required (just like our election commissions that organize elections: the Central Election Commission of the Russian Federation, commissions of the federal subjects and municipal commissions) to issue bylaws and instructions explaining the election procedure established by law. Naturally, these bylaws must comply with the law. If they do not comply with the law, they are challenged in court (probably the same in the US as in Russia), but the rules on challenging are different, and it is a different judicial procedure.

Such a judicial process of challenging the bylaws should be initiated BEFORE these acts become effective (by the way, there have been precedents in Russia of successfully challenging the instructions of regional commissions). The paper shows that the plaintiffs did not challenge these acts, at least before the election result was announced. Therefore, it is unreasonable to reprimand the court for not addressing the flaws in these bylaws. Although some (not very obvious from the text) violations of the law were indeed explained by the instructions in question, the courts were obliged to consider these very violations, the related procedures and their consequences (which the courts did), not the instructions themselves. That was the task facing the courts in these proceedings.

To better understand the legitimacy of the US courts' failure to go beyond the claims, we can imagine the hypothetical actions of the federal courts in Russia when considering a dispute concerning overturning an election result. Could a Russian court, for example, overturn the election result in Tambov Oblast on the grounds of the lack of transparency of "at-home" voting, where 15-20% of voters vote this way [5: 149-156]? Or, for example, on the grounds that the CEC instructions on the use of video surveillance contradicts the principle of openness and publicity of the activities of election commissions, established by Article 3 of the Federal Law "On Basic Guarantees of Electoral Rights..." [2: 665-680]?

The auhtor's second misconception is his claim about the "informal" and subjective approach of US courts to electoral dispute resolution. The author sees this "informal" and subjective approach in the fact that the courts, instead of finding several violations of the postal voting procedure (some of which were questionable, as a matter of fact), decided to cancel the election result, assessed the contribution of these violations to distorting the vote returns.

In practice, the formal approach often turns into a legal kind of political technology to influence the election outcome, which not only distorts the vote returns, but also makes the elections themselves meaningless [4; 6]. This is particularly evident in the examples of denials of registration to undesirable candidates in Russia, when purely formal complaints about the documents of candidates become grounds for the court to deny registration, depriving voters of the full right to choose [3].

US courts quite rightly felt that it was their duty to systematically (as our Constitutional Court likes to put it: "in a systemic relationship") assess the extent to which the violations presented by the plaintiffs could have affected the vote returns. As they correctly pointed out, cancelling the vote returns because of the number of violations, which was only a very small fraction of the number of voters who voted, meant ignoring the will of the rest of the voters. The author of the article does write about this, but nevertheless argues that a formal approach should have been taken.

At the same time, it seems to him that some (controversial) inconsistency of the bylaws with the law reinforces this assertion. And I quote: "We can agree that a few counting irregularities cannot call into question the will of the millions of voters in a constituency. However, this approach fails to take into account that the source of such violations is the extensive authority appropriated by the state secretaries". I do not see the logic in this statement: if the source of the violation is the extensive authority of the state secretaries, then a few violations that have been committed can call into question the will of millions of voters? The US court weighed the degree of violation of voting rights in the two cases — the cancellation or the confirmation of the vote returns — and concluded that the cancellation would entail a greater violation.

In this case, it is worth pointing out that such a comparison, which is usually called the codimension principle (and the author prefers the foreign term "proportionality principle") in Russian legal practice, is indeed quite subjective in nature. Such subjectivity is the judge's prerogative; let us recall that the US court system is multi-tiered, and lower level judges in are elected.

Presenting certain violations in order to overturn the vote returns is a well-known legal technique, one that often pursues a political purpose. Moreover, violations are sometimes deliberately provoked or imitated in order to cancel undesirable vote returns. If there is no independent court, this technique bears disastrous consequences for elections. For example, at the 2009 mayoral election in the city of Zhukovsky in Moscow Oblast, complaints were filed with the organizing commission after all the votes had been counted, alleging violations in precinct commissions won by a candidate undesirable to the administration. Without investigating the circumstances, the organizing commission canceled the vote returns at the relevant polling stations and thereby changed the result of the election. The court supported the commission's decision [2: 325].

I will also provide an example from my personal experience. One of the precinct commissions in the constituency where I was chair of the election commission allowed one of the deputy candidates to vote for eight voters by proxy. This was a blatant violation, on the basis of which the constituency commission was asked to cancel the vote returns at this polling station. The commission reviewed the results of the voting to find that this candidate was far, more than a hundred votes behind the leading candidates (the election was to multiple seats). Cancelling the vote returns would mean ignoring the will of more than 1,500 voters who took part in the vote. The commission decided to approve the vote returns as they were counted. It should be noted that the then chair of the Moscow City Election Commission, Valentin P. Gorbunov, did not agree with our commission's decision, and the vote returns at this polling station were cancelled by the higher commission [2: 68–69].

The conclusions that the author draws when he speaks of the consequences of the court decisions discussed in the article seem too bold. In fact, he shifts his criticism of the US electoral system (electoral system in the broad sense, that is, as a system for organizing elections) to court decisions. The functions of election organizers in the US, as well as in many other democracies, are indeed entrusted to the executive branch, which a Russian citizen may find troubling. A Russian citizen has a very dim understanding of the electoral consequences of such a factor as a real separation of powers.

Let us examine the author's assertions concerning the evaluation of the judicial decisions in question: "Let us assume that the courts acted correctly and were not guided by a formal approach, but assessed the question of annulment of the results on a larger scale. What are the key takeaways, then? The complete and unlimited discretion of state secretaries to regulate electoral processes, the lack of a proper balance between the Constitution, state laws, and the secretaries' recommendations, and the precedent of ignoring the provisions of the Constitution and the law".

However, according by the text of the paper, when making the decision, the courts actually proceeded from a summary of legislative and constitutional provisions, and did not limit themselves to such a confident interpretation of the law as did the author, therefore assessing the possible degree of violation of voting rights. The courts' decisions do not indicate "unrestricted discretion" of state secretaries.

While assessing the proportionality principle applied by the courts, the author formulates a maxim that is just both obvious and non-constructive, but also carries a negative connotation: "If anything, the proportionality test is appropriate in the present cases only if it does not upset the constitutional balance or restrict the rights of other claimants." This is as true as the fact that the Volga flows into the Caspian Sea. Although it is unclear.

So why did Trump turn out to be right?

Tail piece

After I wrote this remark, Germany had seen a precedent that is directly related to the issue discussed here. The Constitutional Court of Berlin cancelled the elections to the Landtag and local elections in Berlin that were held on September 26, 2021. The court considered procedural violations as grounds for cancellation: ballot confusion, precinct commissions working after 8 p.m. because of large queues at polling stations [7]. When summing up the results of the vote, the long-time chair of Berlin's electoral commission, Mrs. Petra Michaelis, "announced that violations of electoral procedure were detected at 207 of the 2,257 polling stations. That said. the violations at the polling stations in two constituencies were so significant that they could affect the seat distribution in the new composition of the Senate" [8]. After that, Michaelis resigned.

Just like in the US, but unlike in Russia, in Germany it was about canceling elections following PROCEDURAL violations. However, these cases differ in that in Germany it was clearly proven that violations were massive (it is worth noting that the higher electoral commission, not the candidate, was the first to initiate the cancellation of the election). In at least two cases, however, the difference between the leading candidates was extremely small. Given the known German propensity for order, the mass violation of procedure could not remain without consequences.

In contrast to the US case, the election organizers themselves documented and quantified the procedural violations. Therefore, the Berlin Constitutional Court's ruling seems strict but fair. Elections in Germany are serious things, and citizens treat them accordingly. The decision of the Berlin Constitutional Court once again reinforced this attitude.

Received 18.11.2022.

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References

1. Brikulsky I.A. The US Constitution and Postal Voting: Why Did Trump Turn Out to Be Right? – Electoral Politics. 2022. No. 2 (8). P. 4. - http://electoralpolitics.org/en/articles/konstitutsiia-ssha-i-pochtovoe-golosovanie-pochemu-tramp-okazalsia-prav/
2. Buzin A.Yu. Rossiiskiye vybory: iznutri, snaruzhi, sboku. Zapiski negosudarstvennogo cheloveka [A View of Elections in Russia: Inside, Outside, Sideways. Diary of a Non-Statesman]. Moscow: KnigIzdat, 2020. 850 p. (In Russ.)
3. Lyubarev A.E. Registratsiya kandidatov i partiynykh spiskov: neobkhodima smena paradigmy [Candidate and Party List Registration: A Paradigm Shift is Needed]. – Constitutional and Municipal Law. 2019. No. 12. P. 46–52. (In Russ.)
4. Lyubarev A. Problemy priznaniya nedeistvitelnym voleizyavleniya izbiratelei [The Issue of Declaring Voter Will Expression Invalid]. – Pravo i zhizn [Law and Life]. 2005. No. 80 (3). P. 73–86. (In Russ.)
5. Lyubarev A. Zanimatelnaya elektoralnaya statistika [Entertaining Election Statistics]. Moscow: Golos Consulting, 2021. 304 p. (In Russ.)
6. Postnikov A.Ye., Alekhicheva L.G. Nedeistvitelnost vyborov. Zakonodatelstvo i sudebnaya praktika [An Invalid Election. Legislation and Court Practice]. Moscow: Izd-vo "Prava cheloveka," 2001. 190 p. (In Russ.)
7. Romashenko S. Sud postanovil provesti perevybory v landtag Berlina [Court Rules for Re-Election to Berlin's Landtag]. – DW, 16 November 2022. URL: https://www.dw.com/ru/sud-postanovil-provesti-perevybory-v-zemelnyj-parlament-berlina/a-63779041 (accessed 18.11.2022). (In Russ.) - https://www.dw.com/ru/sud-postanovil-provesti-perevybory-v-zemelnyj-parlament-berlina/a-63779041
8. Zholkver N. Khaos na vyborakh v Berline ne ostanetsya bez posledstvii [Electoral Chaos in Berlin Will Not Be Without Consequences]. – DW, 14 October 2021. URL: https://www.dw.com/ru/v-haose-na-vyborah-v-berline-budet-razbiratsja-konstitucionnyj-sud/a-59507451 (accessed 18.11.2022). (In Russ.) - https://www.dw.com/ru/v-haose-na-vyborah-v-berline-budet-razbiratsja-konstitucionnyj-sud/a-59507451