Discussion on Invalid Election Results: Concluding Remarks

Lyubarev A.E.

Abstract

This paper addresses some of the issues that were discussed at the virtual roundtable on the annulment of election results. We challenge the opinion that the state and the individual are the two parties involved in disputes on invalid elections as well as the opinion that the issue of invalid elections is one of constitutional and legal responsibility for violations committed during the campaign. Our examples include electoral disputes concerning annulment of vote returns or election results where the court attempted to assess the number of "suspicious" votes. We then discuss the specifics of said electoral disputes in the context of multi-seat constituency elections, as well as elections held under proportional representation and mixed systems. Our conclusion argues that there is a need to develop a legal doctrine that would allow election commissions and courts to find legal solutions for complex political contexts.

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The discussion on the issues of annulling vote returns and election results [1] proved to be quite stimulating. It also showed how little attention the academic community pays to these issues. Therefore, the discussion has to continue.

In their answers regarding the criteria for assessing the extent of violations unrelated to voting, some experts suggested that such criteria should not be kept outside of a rigid legal framework, "since a rigid framework would do more harm to both voting rights and guaranteed judicial protection than its absence," and that the court should not be stripped of its powers. I am inclined to agree on the issue of rigidity, since "the law cannot provide for everything" indeed. Still, I believe that certain criteria should be elaborated in the legislation.

However, I would not depend on the judiciary too much and assume that it is only the matter of the court's independence. This conclusion is prompted by cases of the U.S. and Germany. The lawsuits that challenged the results of the 2020 U.S. presidential election [2; 6] indicated that the U.S. could use some elaboration of the issue as well, otherwise there would not be any purely methodological questions like what should be challenged, when, and what kind of arguments should be employed. I believe that the case of annulling the results of the Berlin state election (which is examined in the present issue in a paper by Andrei Buzin [5]) requires further interpretation. We will address this case a little later.

In my opinion, the criteria that allow to find a balance between rights and interests of various electoral participants on such complex issues should be developed by a community of academics and legal experts. There is a need to develop a legal doctrine that would be of use to both legislators and judges.

On the parties to an electoral dispute

Ivan Brikulsky supports his points with the thesis that when non-transparent electoral procedures are challenged, the individual and the state collide [1]. Technically, one could agree with that. However, we are discussing cases of challenging election results, which is an electoral dispute of a very different kind, even if non-transparent procedures are part of it. In a dispute over election results, the main parties (even if the election administration is the formal defendant) are the main candidates and/or parties, backed by their respective voters.

Brikulsky believes that "only the individual can decide exactly when they can seek judicial protection". While we "generally" agree with this point of view, one still has to keep in mind that the essential nature of the dispute changes depending on whether the procedures are challenged before or after they have been applied. In the first case, the individual protects not only their rights, but in fact the rights of an unlimited number of people. And when procedures are challenged after the vote and by the losing candidate (I do not recall a case where a winner would file such a lawsuit), then that candidate is protecting their interests above all else. Thus, we arrive at a reasonable question: why were the procedures not challenged before they were applied?

In the case of the 2020 U.S. presidential election, the idea of "the individual vs. the state " looks especially odd. In this case, "the individual" is the person who held the highest office in the state, who had the ability not only to challenge non-transparent procedures, but also to introduce bills to fix them. And his post-vote lawsuits appear like a desire to remain in office against the will of the voters. And it is not so much "the state" (represented by the election organizers in the states) that he collides with, as the winning candidate (who is also "the individual") and his voters. From this point of view, the cases of Donald Trump vs. Joseph Biden and of Roman Yuneman vs. Margarita Rusetskaya are fundamentally different.

I also believe that it is a mistake to consider cases of election annulment as a matter of constitutional and legal responsibility. Following this idea, election results can only be annulled if there were violations on the part of the winner, regardless of the extent of violations.

In fact, the main question in such cases is whether it is possible to reliably establish the election results, that is, the actual will of the voters. If there have been violations that prevent the establishment of this will, the election results ought to be declared void, regardless of whether or not the winner is guilty of these violations. For in this case, voter rights are paramount. On the other hand, if the winning candidate was guilty of some violations, but these violations did not affect the election results, the candidate may be held liable (for example, administratively), but the election results should not be annulled.

On the nature of "suspicious" votes

Some questions in the discussion [1] concerned "suspicious" votes. A paper by Andrei Buzin [5] refers to the same votes as "spoilt" votes. Unfortunately, not all experts were able to grasp what the term implied. Nikolai Vorobyov remarked: "Neither statutory law, nor electoral law, nor procedural law has anything on "suspicious" votes and other ambiguities. Any doubts in the judicial process must be overcome or dispelled by legal means." However, we are well aware that not all doubts can be resolved in court, and therefore the law employs the concept of "irreconcilable doubts," which should be interpreted in favor of one of the parties.

I therefore consider it necessary to introduce the concept of "suspicious votes" into the electoral law first, and then into the electoral legislation itself. I see "suspicious" votes as a complex idea that is comprised of several categories:

1) recorded votes that do not fully reveal the actual will of the voters;

2) recorded votes that may have not been cast by actual voters;

3) votes of the voters who wanted to vote, but could not through the fault of election organizers.

Here are a few examples.

Example 1.

In a number of cases, when deciding to invalidate the election results, an election commission or court does not assess the number of " suspicious votes". A striking example is the decision of the Supreme Court of Ukraine of December 3, 2004, which annulled the results of a repeat presidential election. It is possible that such assessments were made, but they were left out in the court's decision [11: 106–108]. Thus, the court's decision contains no evidence that the results of the valid expression of the will of the voters cannot be established.

Example 2.

At the 1997 concurrent elections of deputies to the Moscow City Duma and councillors of Moscow's district assemblies at one polling station, S., who was a candidate for district councillor, acted a proxy voter for 9 people. This was an illegal vote, so the 9 votes should have been regarded as "suspicious". Naturally, it was impossible to determine who those votes went to. One could assume that they were cast for candidate S. among others, but it was a four-seat constituency.

For the sake of protecting voter rights, not the letter of law, there should have been an investigation into whether these 9 votes could have affected election results. It would have been easy to see that they could not: vote gaps between the candidates were substantially larger. However, the Moscow City Election Commission and its subordinate territorial and constituent commissions went the other way by invalidating all 770 ballots at this polling station. As a result, over 700 voters, who were not guilty of anything and whose will was not in doubt, had their votes annulled.

This decision did not change the election results, but it was a matter of chance. After 770 ballots were declared invalid, candidate S. moved from third to fourth place, outperforming the next candidate by only 106 votes [8: 221].

Example 3.

On March 18, 2004, a repeat State Duma election was held in Vostochny single-seat constituency No. 207. At six polling stations (out of 212), voters were given ballots where two candidates were illegally crossed out. On these grounds, the constituent election commission annulled the vote returns at these polling stations. Following the vote returns at the remaining 206 polling stations A.V. Morozov was declared the winner, followed by the "against all" line.

Next, the St. Petersburg City Court annulled the election results based on the fact that the total number of voters at the six polling stations was greater than the difference between the results of the winner and the "against all" line. This decision was then overturned by the Ruling of the Supreme Court of the Russian Federation from 25 August 2004 on the case No. 78-G04-31.

In fact, the court of the first instance found the total number of voters at the six polling stations, which amounted to 12,848 people, to be "suspicious". And the difference between the result of the winner and the number of votes "against all" amounted to 7,685 votes. So the court made a ruling based on the fact that the first number was greater than the second. However, the court had no reason to deem the 12,848 votes "suspicious". It was known that 6,531 voters voted at those six polling stations, and there was no reason to believe that the violation had affected turnout. Moreover, it was known that 1,102 voters received "correct" ballots. Therefore, the number of "suspicious votes" amounts to 5,429, which is less than the difference that ensured the victory of the candidate.

If we delve even further into the heart of the matter, we find that it is incorrect to regard even these 5,429 votes as "suspicious " in this context. Since the voters who received these ballots were not deprived of the opportunity to vote "against all", we cannot assume that the number of "against all" votes would have been higher had there been no violation. It would have likely been the other way around.

I should only add that I do not think that the decision to annul the vote returns at the six polling stations in question was correct. I believe that the 5,429 ballots where candidates were illegally crossed out should have been declared invalid. On the other hand, the 1,102 "correct" ballots should have been properly recorded. Consequently, my answer to question 3 of the virtual roundtable is negative: if only part of the ballots are suspicious, then they should be declared invalid, and the non-suspicious ballots should be recognized as valid and participate in determining the election results [10].

Example 4.

The results of the Barnaul mayoral election on March 2, 2008 (which coincided with the presidential election) were challenged in the Tsentralny District Court of Barnaul. On May 7, 2008, the court ruled to annul the vote returns. This decision was later overturned by the regional court.

Elections were held at 249 polling stations. According to the protocol of the municipal election commission, a total of 294,709 voters participated in the elections (57.75%; a total of 510,319 people were included in electoral rolls). The incumbent mayor Vladimir Kolganov was declared the winner, having received 181,644 votes (62%).

The district court annulled the vote returns at 83 polling stations. The reasons for this decision were quite compelling. The court-appointed commission recounted the ballots and the marks in electoral rolls to find out that the number of ballots considered in determining the vote returns exceeded the number of ballots issued according to electoral rolls (the difference went over a hundred at many polling stations). That said, the court decision stated that "various methods were used to distort the vote returns": it was not just ballot-box stuffing, valid ballots were replaced as well. Under such circumstances, the court concluded that the vote returns at these polling stations could not be established with certainty.

According to the court decision, 168,245 voters were added to electoral rolls at the 83 polling stations, whose vote returns were annulled by the court. Kolganov received 6,374 votes at these polling stations. After excluding these votes from the total number of votes cast for the winner, the court stated that 118,570 votes were cast for him, representing 40.2% of the number of participating voters, while he needed over 50% to be elected (the court decision is referenced in [3]).

In this case, the number of "suspicious" votes can be assessed differently, depending on the circumstances, which are not reflected in the court decision, but are evident from the case files. It could be either the number of votes cast for the winner at the polling stations where the vote returns cannot be established with certainty (63,074), or the number of voters at those polling stations (168,245). More likely still, it could be the number of voters who voted at those polling stations (unmentioned in the court decision). It is likely that the number should be assessed differently for different polling stations, depending on the circumstances. Nevertheless, even the minimum estimate (63,074) is sufficient to draw the conclusion that the will of the voters cannot be established with certainty in this case.

Example 5.

On September 16, 2018, a repeat gubernatorial election was held in Primorsky Krai. These are the vote returns according to the official protocol of the regional election commission: 253б200 votes for Andrei Tarasenko and 245,550 votes for Andrei Ishchenko. That put the difference at only 7,650 votes. These returns were annulled by a decision of the regional election commission on September 20, 2018, based on the CEC's recommendation, expressed in a decision of September 19, 2018.

This decision was based on the decision of the TEC of the Sovetsky District of Vladivostok of September 18, 2018 to annul the vote returns at 13 polling stations. The regional election commission's decision stated that the total number of voters at these polling stations (24,246) was greater than the difference between the candidates. As a result, 24,246 votes were deemed as "suspicious".

The circumstances of this case are more fascinating and instructive, however. On the one hand, the annulment of vote returns at the 13 polling stations can hardly be considered warranted. It was based on the sole fact that commission files were left unsupervised because of EMERCOM operations. However, it was later revealed that the vote returns from these polling stations were uploaded to SAS "Vybory" prior to the fire team's arrival (although the returns had not yet been transfered from SAS "Vybory" to the CEC). Neither the TEC, nor the higher commissions provided proof of document corruption caused by the fire team operations. Moreover, the data from these polling stations indicated that the overall turnout there amounted to only 6,456 voters, which was less than the gap between the candidates. Therefore, the conclusion that the annulment of vote returns from these 13 polling stations prevented the actual will of the voters from being established is hardly valid.

On the other hand, objections to vote returns in a number of other cities had more substance to them. For example, the CEC's decision (but not the decision of the regional election commission) states that the data from the 19 protocols on vote returns from several PECs in Ussuriysk and Artyom was changed upon being uploaded to SAS "Vybory" and then re-uploaded, which changed the vote returns substantially. An analysis of the case established that based on the initial data from these 19 PECs, Ishchenko was the winning candidate [7: 536–541].

Therefore, the case required a more detailed analysis of each of the contestable PECs. It is very likely that the actual vote returns could have been established for many of them. For example, if the data reupload was unwarranted, then initially uploaded data should have been recovered. This would have opened a possible scenario where the actual will of the voters could be established (the will being Ishchenko's victory). However, if we had to admit with certainty that the number of "suspicious" votes exceeds the difference between the established results of candidates, then we would have to annul the repeat election vote returns.

Example 6.

When annulling the 2021 Berlin House of Representatives election, the Constitutional Court estimated the number of "spoilt" votes at 20–30 thousand. The court also cited the fact that the Alliance 90/The Greens and AfD needed only 10,000 or 2,000 more votes respectively to change the number of seats they gained. Therefore, such number of "spoiled" ("suspicious") votes could have affected the seat allocation between parties in a single constituency. Moreover, the difference between the winner and their main opponent in six single-seat constituencies was lower than the number of "spoilt" votes [5].

We will do a more detailed examination of this decision in the next section.

Example 7.

During the December 1999 State Duma election campaign, the constituent election commission cancelled Albert Makashov's registration (according to public opinion polls, he was in the lead) in the Promyshlenny single-seat constituency No. 152 four days before the election. This decision by the commission was not condemned as illegal until after the election was over. Beyond that point, Makashov challenged the election results in constituency No. 152, and on June 5, 2000, the Samara Oblast Court settled the claim in his favour by annulling the results in the constituency on the grounds that the candidate was banned from running in the election and his supporters were stripped of the chance to express their will. However, on August 29, 2000, the Supreme Court of the Russian Federation overturned the decision of the regional court, stating that it was based on incorrect interpretation of the norm of law.

By the end of the vote, Vera Lekareva won with 28.7% of the votes; 26.4% voted against all candidates, and the number of invalid ballots amounted to 3.3% [10]. Makashov's representatives argued that the total number of votes "against all" and invalid ballots exceeded the number of votes for Lekareva, suggesting that all these voters could have voted for Makashov. In other words, they counted the number of "suspicious" votes as the sum of the number of votes "against all" and the number of invalid ballots. I believe it to be an acceptable approach in this case, although one that requires an important adjustment: since some voters either vote "against all" or spoil ballots even when no candidate is removed, the average of these figures for all constituencies (or for the constituencies without explicit protest voting) should be subtracted from the sum of the "against all" votes and invalid ballots. Such cases require independent expert review.

Example 8.

The court case on the complaint filed by the Union of Right Forces (SPS),which challenged the 2007 State Duma election results, is a curious one in that it is one of the few cases where campaign violations were quantified. One of the main reasons for the complaint was the illegal seizure of SPS campaign materials by public security organs. Party representatives claimed that over 30 million copies of campaign materials were seized, but the CEC officials admitted seizing around 20 million copies, of which about 17 million were seized illegally. The pleadings also indicated that the printing house had failed to print a part of what the SPS ordered because of interference from the Ministry of Internal Affairs (although the court did not investigate this issue). Meanwhile, printed materials were the main means of promotion for the SPS in this campaign, and a significant portion of these materials was seized [9: 351–359].

The amount of illegally seized printed material (17 million copies) was several times greater than the number of votes needed to pass the 7 percent threshold (about 5 million votes). The SPS received only 669,000 votes in this election. One can assume that had the illegally seized printed materials been distributed, the SPS result would have performed better. But just how much better? Would they then be able to get the 5 million votes needed to get seats in the State Duma? These questions have no definitive answers, but one could try to make expert assessments.

Multi-seat constituencies, proportional and mixed systems

In response to question 7, several experts expressed the opinion that in a multi-seat constituency, it is impossible to say that some candidates were elected properly while others were not [1]. I cannot recall any real-life examples, but I can think of a mock-up one.

Let us say there is a fairly typical distribution of votes: a three-seat constituency, six candidates, candidate A receives 382 votes, candidate B 318, candidate C 272, candidate D 255, candidate D 241, candidate E 134. Now let us assume that the ballots in one of the portable ballot boxes have to be considered "suspicious" because ballot box stuffing is suspected (the fact that in this case they have to be declared invalid by law has no fundamental importance for this analysis). And there are 20 such ballots, a number that exceeds the gap between candidates B and D. Obviously there should not be any doubt about the election of candidates A and B, but the election of candidate C raises questions.

Things are much more complicated in the case of party-list elections. Let us turn to the case of Berlin described in [5]. The elections here were held under a mixed compensatory system. And the number of "suspicious" votes in a single constituency exceeded the "value" of a single seat. Moreover, in six single-seat constituencies the number of "suspicious" votes exceeded the difference between the winner and their main opponent.

There are two separate questions. Question one: Should the election results of a single constituency have been annulled if only one seat out of 78 was being called in question? Question two: Should the overall election results have been annulled (i.e., both in the single constituency and in all 78 single-seat constituencies), if it was impossible to establish the results of the 6 single-seat constituencies with any certainty?

This is how the paper under discussion responds to question two: yes, "because the results and the vote returns in majority constituencies (considering the first vote) influence the party-list seat allocation... This is indeed the case according to the rules for determining election results (the so-called "mixed compensatory system"), and the extent of such influence can be quantified (although the Constitutional Court did no such thing, simply declaring such influence took place)."

And here I cannot help but express my reservations. The point is that in a mixed compensatory system, the election results in majority constituencies do affect the seat allocation under the proportional representation system. But that is the advantage of this system: the results should not affect the overall seat allocation, that is, the total number of seats received by the parties under the majority and proportional systems. Under such circumstances, annulling the overall election results over doubts about six constituencies seems implausible. It would probably be more appropriate to annul the results on the first ballot only in those two (or even six) constituencies where there was doubt about the winner, as the Land Commissioner of Elections proposed.

As for annulling the results because of doubts about the allocation of a single seat... The court's decision refers to the "lesser evil principle". This is where my reservations are the strongest.

We have to remember that the legal proceedings lasted for about a year. Such duration might be believable if we consider the amount of files the court had to look through. But as a result, the court made its decision when the elected House and the government it formed had already been in office for over a year, for one thing. At that point, the legitimacy of their decisions had come into question. For another thing, voter preferences had changes in the span of over one year. And this was evident in the repeat election held on February 12. The CDU, for example, increased its representation from 30 to 52 seats, while the FDP lost all of the 12 seats it gained in September 2021. The remaining four parties underwent fewer changes, but the fact was that all parties experienced changes [4].

Therefore, from a legal perspective, the decision of the Berlin Constitutional Court did not restore the violated electoral rights, but simply resulted in the Landtag of Berlin conforming to the new political reality. Therefore, I find it difficult to agree with the statement that this decision complied with the "lesser evil principle".

Court: arbiter or actor?

In conclusion, I cannot leave Ivan Brikulsky's [1] commentaries on the role of the court without a response. He writes: "A fine line that exists between the court as arbiter and the court as an actor who can take a side in a political conflict, predetermine the outcome of elections, and change the form of government. To impose such responsibility on a court is to subject it to an "institutional trial". The issue of determining the winner of a political race results in courts assessing not just issues of law and fact, but also in having to carry a burden of resolving a political issue".

The problem indeed exists, but what should come of it? Should we just give up the opportunity to resolve electoral disputes (and especially disputes over election results) in court? After all, we see that such disputes occur everywhere, even in stable democracies. Who can objectively resolve them other than the court? After all, constitutionalism dictates that the court is the most nonpolitical entity.

"It may even seem to us that there is no problem in theory: in an independent judicial system it is solved automatically, and the court remains unaffected by political fervors, acting as what it should be—an arbiter". Here, I am compelled to agree with Brikulsky: the fact of a judicial system's independence does not guarantee lack of political bias. Judges are human beings too, and they are likely to have political preferences. And in deciding a political issue, it is possible that they will express these preferences.

It seems to me that professionalism is the only solution, as it compels one to put professional principles and rules above political preferences. But that is only when such professional principles and rules are common knowledge. If the issue looks "shady", even professionals start looking for political landmarks while trying to find a way out of the "shadows".

That is why the academic community needs to develop clear legal guidelines for judges and members of election commissions so that they know how to act in certain cases. Naturally, it is impossible to imagine all possible scenarios, but they can be classified and a dispute resolution methodology can be developed for the main ones. Thus, in the case of addressing the validity of election results, it is impossible to do without quantitative assessments. Theoretical development of such assessments is still a work in progress, however.

Received 10.03.2023.

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References

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