The Issues of Annulling Vote Returns and Election Results

Balabanova O.V., Brikulsky I.A., Buzin A.Yu., Vorobyov N.I., Elaev A.A., Pokrovskaya O.L., Rybin A.V., Titov M.V., Khudolei D.M., Shablinsky I.G.

Abstract

Electoral law experts answer questions related to electoral disputes over annulment of vote returns and election results. The issues discussed concern cases when election validity is called into question. Such cases include the use of auxiliary forms of voting (early voting, voting outside the voting premises, postal voting, remote e-voting, etc.) that are much less transparent procedurally, quantitative assessment of the amount of "suspicious" votes, the special circumstances of voting in a multi-seat constituency and of party-list voting, the features of challenging election results in cases of violations related to the illegal non-admission of candidates to elections, violations during the election campaign, etc.

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Editor's note

Vote returns and/or election results annulment are among the most complex issues in electoral law, and they often occur in real-life context. An overview of the most high-profile cases that occurred during the Russian elections of 1993–2004 can be found in [22], a detailed analysis of a number of court cases from 1996–2001 is available in [26], and cases from mayoral elections in 2000–2009 are descibed in [20: 604-605]. The more recent high-profile cases include the decision to annul the results of the 2018 gubernatorial elections in Primorsky Krai [19: 536-543], as well as attempts to challenge the remote e-voting results in Moscow in 2019 and 2021 [4].

Multiple such cases were observed in other countries. Two particularly famous cases when vote returns were annulled in a repeat election include the 2004 presidential election in Ukraine [24] and in Austria in 2016 [25]. The attempts of former U.S. President Donald Trump to challenge the results of the 2020 presidential election created a lot of buzz [5; 14; 16; 34].

There have been multiple lesser-known cases of similar nature. For example, the non-recognition of the results of the 2018 U.S. House of Representatives elections in North Carolina's District 9 and a number of other U.S. election disputes [16; 34]. In 2015, the vote returns from two polling stations in Kirovograd (Ukraine) were annulled, changing the outcome of the mayoral election [21]. In the same year, a court decision changed the results of federal state elections in Bremen, Germany: one seat was transferred from the Social Democratic Party to the Alternative for Germany [23]. The most recent development (November 2022) was the annulment of the results of the 2021 state election in Berlin [7].

All these cases can be classified into three groups. The first (the least high-profile) would include cases when vote returns were annulled in specific polling stations or territories without changing the election results. The second group would include cases when vote returns were annulled in specific polling stations or territories, changing election results as a consequence (Tutayev-2000, Noyabrsk-2003, Zhukovsky-2009, Kirovograd-2015, etc.). The third group would include cases when election results were annulled altogether (Ukraine-2004, Austria-2016, Primorsky Krai-2018, Berlin-2021, etc.).

The act of annulling vote returns and/or election results may be considered an extreme measure of protecting electoral rights of citizens—something that should be applied in exceptional cases, when it is impossible to determine the actual will of voters. On the other hand, abusing this procedure leads to an even greater infringement of the rights of citizens [3; 8; 22; 26].

The issues surrounding the annulment of vote returns and/or election results can be split into two categories. The first category involves the legal grounds for annulment. The second involves the procedures that find proof that these grounds exist.

Naturally, the legal grounds should be different depending on what is annulled: vote returns in specific polling stations/territories or election results. In the first case, it should be about the inability to determine the actual will of individual voters. In the second case, it should be about the impact of violations on election results, that is, the inability to determine the general will of the voters of the corresponding constituency.

That said, the situation with determining the general will of the voters of a constituency varies depending on the electoral system. It is easiest in the case of majority voting in a single-seat constituency (i.e., where there is only one winner). In such cases, the question is almost always whether the detected violations could have changed the order of candidates, where a different candidate would have gotten first place.

The situation gets more complicated in a multi-seat constituency. A good example is a two-seat constituency, where the first place undisputed, but determining the candidate who placed second is impossible. In such a case, can the election results in the constituency be annulled in their entirety, or should the first-place candidate be declared elected, and the results of the second-place candidate declared void? And the greater the number of seats in the constituency, the more such options there are.

Complications go even further under proportional representation. Suppose that the detected violations could have influenced the allocation of several seats. However, it is impossible to determine exactly how they influenced it. Does this mean that the election results can be annulled in their entirety, or is there a remedial solution to be found?

New questions arise when discussing procedures for annulling vote returns and/or election results. What should be the "standard" of proof of violations and their impact on election results? Can a decision to annul the vote returns be based on the lack of transparency in the voting and/or vote-counting procedures, which results in observers having no confidence that the returns are consistent with the will of the voters, and no proof of the contrary? Should the results of regular voting be treated the same as those of auxiliary forms of voting (early voting, voting outside the voting premises, postal voting, remote e-voting) [29]?

A paper by Ivan Brikulsky [5], followed by a response from Andrei Buzin [8], effectively opened a discussion concerning these issues in the previous installment of our journal. In this issue, we resolved to continue the discussion by forwarding nine questions to legal experts. .

Ten experts offered their responses. All of them are lawyers, including one doctor of legal sciences and three candidates. Two experts headed election commissions of Russia's federal subjects, three were members of such a commission with a deciding vote, one was the chair of a constituent election commission as well as a member with consultative capacity at the CEC and several federal subject commissions. Most of the experts have litigation experience.

One of the experts (Ivan A. Brikulsky) tried to explain his position in detail, so his answers went beyond the scope of the questions posed. Furthermore, he actually continued the debate opened in the previous issue of the journal. For this reason, we have put most of the text we received from Ivan in a separate section at the end of this publication.

Question 1. Can the decision to annul the vote returns be based on the lack of transparency in the voting and/or vote-counting procedure?

Mikhail V. Titov

The power to recognize the vote returns in cases raising reasonable doubts about the legality of the voting/vote-counting procedures, or about the documentary recording of the returns, lies with the higher election commission and court within their capacity defined by the Federal Law.

Ilya G. Shablinsky

If we're talking about remote e-voting (REV), I simply don't think it can be applied at the moment. That is, I have zero confidence in the procedure. So, to me, the question doesn't make sense: if these procedures weren't transparent to begin with, can the results be annulled?

Andrei Yu. Buzin

When it comes to voting and vote-counting procedures, non-transparency is caused by either legislation or law enforcement (or a combination of the two). In case it is caused by legislation only (as is the case with Belarus, and with certain forms of voting in Russia), there are no grounds for annulling the vote returns; it is necessary to declare public control provisions as unconstitutional. If non-transparency is the result of a violation of observers' rights — a wide-spread practice in Russia in 2007–2011 — then the vote returns ought to be annulled.

Dmitry M. Khudolei

Judicial practice relies on a quantitative criterion, which is reasonably fair, albeit with certain reservations. If there is no evidence of fraud, such vote returns cannot be annulled. At this point, voting is allowed to go on even without observers (they were not appointed or failed to come to the polling station). It is a different situation altogether when observers are illegally obstructed from exercising their voting rights, which may lead to annulment of the vote returns at the polling station.

Aleksei A. Elaev

"Confidence" in election law is similar to other "procedural" branches and complex legal institutions of the continental legal system. This issue, in particular, is very similar to that of declaring invalid the tax authority's decision to hold a taxpayer liable for a tax offense for reasons concerning procedural violations of the tax audit. Over the years, the judiciary has responded to it in different ways, and the interpretation usually comes down to how exactly procedural violations affected the decision to hold a taxpayer liable for the tax offence. And, taking into account all the evidence in the case, individual procedural violations are typically not considered to be fundamentally important, including in a dispute about the prescriptive nature of certain time limits and such. At the same time, there are still issues that "ruin" the tax audit. The same can be assumed for a decision on the "transparency" of the voting or vote-counting procedure: since we are dealing with a rebuttable assumption, the evidence has to be substantial enough to show that procedural violations affect the result of the will expression, and that the final result in the electoral commission's decision would have been different if there had been no such violations. Otherwise, a formal, rather than a material approach, will lead to the annulment of vote returns, even when election results raise no questions.

Ivan A. Brikulsky

Substandard regulation is the responsibility of the state, and any concerns about this "substandardism" must be interpreted in favor of the individual. The same goes for electoral procedures.

This leads us to the obvious answer: the decision to annul the vote returns can — and, in some cases, ought to — be based on the lack of transparency in the voting and vote-counting procedures. If the procedure is not transparent, then it does not meet the standards of legal law or the principle of legal certainty, which makes it is a priori unconstitutional. If the procedure is unconstitutional, if there are substantial concerns about it, meaning it does not meet the "falsifiability criterion", then these concerns also apply to an election held using such a procedure.

Olga L. Pokrovskaya

Federal Law from 12 June 2002 No. 67-FZ "On Basic Guarantees of Electoral Rights and the Right to Participate in Referendums of Citizens of Russian Federation" introduced this potentiality (see clause 1 and subclause "c" of clause 1.2 of Article 77).

However, the practice of elections at various levels in St. Petersburg has shown that neither the higher commissions nor the courts responded to numerous complaints from observers and members of election commissions concerning violations that interfered with the proper observation of the vote count.

The only partial exception is the court's decision to annul the resolutions of six precinct election commissions (PEC) to determine the vote returns after a recount in the 2019 election of municipal council deputies at Dekabristov Island's constituency No. 22 [12]. Violations of the ballot storing procedure (obstructing observers from putting their signatures on the packages; the way the packages were sealed, which did not guarantee the inviolability of the ballots) became the grounds for the court decision.

A similar court decision to annul the resolution of one PEC that determined the vote returns after a recount in the election of deputies to the municipal council of municipal okrug No. 7 was made because some PEC members with consultative capacity and candidates were never informed about the recount [13].

I believe that violating the rights of observers is in itself evidence of violations that are very likely to be or have already been committed by the election commission. Otherwise the commission should have nothing to hide.

Aleksei V. Rybin

In Russia, granted there is zero evidence that the will of the voters was violated, the lack of transparency of the voting and vote-counting procedures is not grounds for annulling the vote returns. This is established in subclause "c" of clause 1.2 of Article 77 of the Federal Law "On Basic Guarantees of Electoral Rights...". The non-transparency can indeed be interpreted as obstruction of observation, yet one would have to also prove that the results of will expression are unreliable, and that it is a consequence the procedure's non-transparency. Filing a complaint in this case will effectively set one on the path of "going I know not whither and fetching I know not what" famously described in Russian fairytales. The very non-transparent nature of the procedure ensures that malicious intent or inadvertent error cannot be uncovered. However, in practice, external signs of any discrepancy inside the "black box" manifest themselves as a difference between the vote returns in the transparent and non-transparent procedures (for example, when voting is done both at the polling stations and in the form of REV).

If the issue involves a dispute in the court of general jurisdiction, the court, assuming there is no evidence of any violations inside the "black box", will deny the plaintiff's claim without question. So, to answer the initial question: no, it cannot be.

However, if the question implies constitutional justice, then it is a different matter altogether: can the law allow a non-transparent voting and vote-counting procedure that damages public trust in the reliability of vote returns?

This question was answered by Germany's Federal Constitutional Court in 2009, when it ruled the use of e-voting and corresponding voting machines in Bundestag elections unconstitutional [15]. A common thread running through the court's ruling is the principle of public voting, which serves as a foundation for public trust in vote returns and, by extension, as a foundation for the legitimacy of people's deputies.

From this perspective, the Russian Constitutional Court should have barred non-transparent procedures that violate the principle of publicity and undermine citizens' trust in elections and elected bodies from entering into the Russian legal space.

Nikolai I. Vorobyov

Yes, it can be — in theory and in terms of legal formalities. However, in the context of today's judicial system and the existing law enforcement practices, the answer is "no".

Why is it a "yes" from the legal standpoint? Because the transparency (openness) of the voting and/or vote-counting procedure is prescribed and formalized by law. And if the violation of legal procedure is confirmed by established facts and raises doubts about the validity of voters' will expression (as literally stated in Article 77 of the Federal Law "On Basic Guarantees of Electoral Rights..." "if the violations do not make it possible to reliably establish the results of the expression of the will of voters" or "this violation prevents establishment of the real will of voters"), then it should become unconditional legal grounds for recognizing the vote returns invalid and, accordingly, for annulling the decision of the election commission on recognizing them valid.

Such grounds are in fact set forth in the current Federal Law "On Basic Guarantees of Electoral Rights...", the subclauses "b" and "c" of clause 1.2 of Article 77 can be regarded as such. In the first case, it is a violation of the procedure of voting and of establishing the vote returns, granted this violation does not allow to reliably establish the results of the expression of the will of the voters or referendum participants ("b").

The second subclause ("c") refers directly to the non-transparency of voting and vote-counting procedures, as it mentions "interference with voting and vote-counting procedures", if, again, these violations do not allow to establish the reliable results of expression of the will of the voters or referendum participants.

It should be noted that Articles 64 and 68 of the cited Federal Law (which resemble instructions in terms of length and content) quite explicitly define the procedures for both voting and vote-counting (i.e., counting ballots and votes and drafting a protocol on vote returns), while guaranteeing openness and transparency of the corresponding electoral procedures and the rights of participants of the electoral process, including every election commission member and observer. These legal guarantees are included in most of the clauses of the said articles. Another thing is that, unfortunately, in recent years, many of these fairly simple and understandable rules have been violated, and the courts do not see (or rather do not want to see) these violations when they review the relevant complaints. So in the current circumstances, naturally, it is very difficult to prove even gross violations of the principle of election transparency as well as the violations of observers' rights.

Olga V. Balabanova

The Russian legislation requires two criteria to be fulfilled in order to annul the vote returns: evidence of violations of electoral legislation and proof of their impact on the expression of the will of the people.

The legislator uses the same formula to annul the results, making exceptions only for two types of violations: violations in the financing of the election campaign and the candidate's not having passive suffrage.

In practice, there have been cases where a minor violation of voting procedures has led to voting returns being annulled (which helped the inclumbent political group to retain power, as in the case of previously mentioned city of Zhukovsky). At the same time, there are many examples where mass violations of electoral legislation were not considered by law enforcement as significantly impacting the expression of the will of the people. For this reason, it is necessary make a priority out of forming a law enforcement practice and developing easy-to-understand evaluation criteria for the impact of certain violations on the will of the people.

I believe that even in violation of the basic principles of electoral law (which requires suffrage to be: universal, equal, direct, secret, free and voluntary, open and transparent, and elections to be held on a mandatory basis in accordance with the established frequency) the materiality criterion of the violation is justified.

However, no matter how insignificant they may appear, procedural violations in appointing election commissions, as well as violations of the principle of independence of the election commission make the voting procedure illegitimate under any circumstances, and there is no need to determine how transparent it is. That is why I have been criticizing REV, as well as any "remote" methods of voter registration (as in putting your name on a specific polling station list at an MPSC, or taking it off the list there, etc.), because I see in this a violation of the principle of independence of the election commission, interference in its activities and the lack of an effective observation system.

The "fruit of the poisonous tree" doctrine would be justified from my perspective. This was the approach taken by the legislator in the previous revision of the federal legislation. And, I believe, it was a reasonable one.

In my view, the lack of transparency and openness in the work of election commissions is an equally serious violation. Interference in observation and other forms of exercising the principle of transparency and openness should also lead to the most serious of consequences. I agree that the legal regulations should make clear the difference between interrefing with and voluntarily refusing observation. However, I believe it does not matter how many observers were prevented from performing their duties. In any event, the proof of interference is evidence that the entire procedure is flawed.

All individuals have different ideas about the transparency of procedures, and different levels of trust in the institution of elections. Even the most detailed legislative description of procedures will not solve the problem of electoral trust if there is no clear and consistent law-enforcement practice for all.

Question 2. Should the regular and auxiliary vote returns be approached in an equal manner when it comes to the annulment decision?

Olga V. Balabanova

Yes, I believe. REV first of all should be treated equally.

Mikhail V. Titov

The way I see it, vote returns ought to be annulled by the competent authorities if it is impossible to establish the actual number of votes cast (irrespective of the form of voting).

Dmitry M. Khudolei

These auxiliary forms are now effectively mainstream (multiple-day voting used to be an exception, but has become the norm). So it would be logical to treat them equally.

Andrei Yu. Buzin

Yes, because the votes, in whatever form they are cast, carry equal weight. A universal, although rather general criterion — whether it is possible to reliably establish the expression of the will of the voter using a ballot (or information that substitutes it) — consists in the same attributes for any form of voting: certainty, non-falsifiability (correct recording of the vote), freedom of voting.

Nikolai I. Vorobyov

Yes, I believe. Why? Because they are legally equal as formalized procedures that ensure the expression of the will of the voters. They are also quite thoroughly and definitely regulated in legal terms. Consequently, it is quite possible for law enforcement officials (first of all, the election commission, and provided that they do their job properly) to identify violations that prevented them from establishing the results of the expression of the will of the voters. Therefore, it is also possible to find out to what extent this or that form of voting impacted the overall vote returns and election results. The election commission or court can therefore make a legally sound decision to annul the vote returns or even the election results.

Aleksei A. Elaev

Vote returns can only be annulled in their entirety; it is procedurally impossible to perform a recount without taking into account one of the auxiliary forms of voting. This is largely due to the mix-up of ballots during counting (the exception in this case being electronic voting, where the ballots are clearly different from regular paper ballots), as well as the lack of interim legal acts that could be appealed. This is especially relevant in cases where the auxiliary form is significant in relation to the number of people who voted. On the other hand, adopting "interim" decisions on auxiliary forms is likely to bureaucratize procedures and lead to specific voting forms being challenged instead of election results. However, different criteria for assessing the circumstances of different forms of voting can be applied in court when challenging election results, depending on the likelihood of potential violations. For example, while a "beyond reasonable doubt" balance of probabilities can be applied in assessing voting on the premises, a preponderance of probability would suffice in the case of voting outside the premises or e-voting, although a separate doctrine of evidence assessment would be required.

Olga L. Pokrovskaya

I think so. Note, however, that not all "auxiliary" ballots can be counted.

For example, the election commission puts a stamp on the back of the ballots it receives if the number of early voters exceeds one percent of the number of voters on electoral rolls. As for ballots taken out of the ballot boxes for off-site voting, they can be declared invalid only if the number of ballots taken out exceeds the number of people who voted outside the polling station.

There are known cases of invalidating ballots contained in off-site ballot boxes during elections in St. Petersburg. Complaints against early voting coupled with demands to annul its results were submitted to higher commissions and courts more than once (there were especially many of them during the 2014 St. Petersburg gubernatorial elections, which were held simultaneously with the municipal elections), but they were never satisfied. To be fair, the legislation does not allow for such a possibility.

As for remote e-voting, the distrust will not go away until there is a clear and effective method of controlling it.

Aleksei V. Rybin

To answer this question, I will allow myself an immodesty of referencing my own theory, which I have been developing in a number of papers [29; 30]. The theory essentially suggests that Articles 61-67 of the Federal Law No. 67-FZ (and the resulting CEC regulations, such as those on postal or remote e-voting) describe several autonomous voting procedures, which I (after the CEC) call "forms of voting". I categorize all forms of voting into basic and derivative. The basic form of voting is traditional one-day voting at a polling station in the only voting room through personal attendance, where the voter fills out a ballot in the voting booth and drops it in the ballot box; the ballots are then counted by commission members in the presence of members of the public. Other voting procedures constitute derivative forms that are designed to appeal to voters who cannot or do not want to come to the polling station.

Voting and vote counting are the most exposed stages of the electoral process. Lack of violations during voting is guaranteed by observation [9]. In this way, the more observable the form of voting, the lower the risk of violations (fraud).

The basic form is the most observable. In one way or another, derivative forms are less observable; therefore, the likelihood that fraud will take place during their application is higher. And if so, then the approach to regular and auxiliary vote returns must be different "when it comes to the annulment decision". If the presumption of correctness of vote returns is quite natural in the basic form and other relatively transparent forms of voting, then as their non-transparency increases (up to complete non-transparency in the case of REV or voting by means of electronic voting machines) this presumption should be dropped and possibly (?) replaced by the presumption that vote returns are incorrect. While in the basic form of voting the court must be presented with hard evidence of critical violations, only probabilistic evidence (including purely statistical evidence) is sufficient to annul the election results in the case of REV.

Ivan A. Brikulsky

In this case, I would like to cite the point of view that political law attorney Anton Timchenko expressed in the Legal Opinion section of the report "REV and Free Elections: A Compatibility Test" [4]. At the time, Anton Timchenko was faced with a number of issues, one of which concerned the compliance of REV with the constitutional principles of free elections. Although he regarded REV in a more positive light, he pointed out that, in reality, no auxiliary form of voting fully complies with all the principles of free elections, and the most important thing is to ensure "a constitutionally meaningful minimum of implementation of these parameters". One can agree with this point of view: although such constitutional principles of free elections as equal secret ballot, openness, transparency, organization of elections exclusively by commissions, etc. seem universal, their application to various auxiliary forms of voting cannot be the same: some of the principles can be ensured to a greater or lesser extent depending on the voting form.

Let's keep in mind that auxiliary forms of voting are ideally used in the cases where traditional voting cannot be used for some reason. This is very important because an "auxiliary" form is "auxiliary" for a reason: it is not intended to completely replace voting at the polling station, that is, the diversity of voting forms cannot compromise in-person voting at the polling station. This suggests that auxiliary voting forms are a priori different from traditional voting and therefore require a more differentiated approach, including on issues of vote returns and election results. In most cases it has to do with objective factors, not so much with the reluctance on the part of election commissions.

It is not uncommon for the principles of free elections to collide with one another in certain forms of voting. For example, under the existing REV model in Moscow, each ballot is assigned a unique number that is linked to the voter's name and address. During voting the assigned number is checked against the database. The fact that each ballot has a unique number means that the secrecy of the vote can be disclosed to those who have access to the electronic voting infrastructure, that is, the REV operators. Encryption and other means of protection cannot solve the problem: once the result of the e-ballot with a unique number has been decrypted, it still has to be made public to count the votes. On the one hand, the secrecy of the vote can be compromised when a ballot is assigned a unique number. On the other hand, the unique numbers of ballots are important to confirm that the vote is cast by the voter themselves, meaning the numbers system cannot be easily abandoned, as this would enable the uncontrolled flood of electronic ballots. In other words, there is an insoluble contradiction within the concept of electronic voting, which threatens the secrecy of the vote, and the genuine expression of will as a result. Another example would be hard-to-reach areas. It is a challenge to get the ballots and the necessary equipment there in the first place, not to mention ensuring effective observation.

Therefore, despite all the lip-service on the standards of free elections, it is virtually impossible to apply them to all forms of voting in equal measure. Moreover, some of those principles are difficult to apply to auxiliary forms of voting especially. This question requires much more careful thought, and perhaps the development of some kind of evaluation system or step-by-step test that balances basic standards and principles of free elections in relation to auxiliary forms of voting, especially for REV, which at this point has effectively transitioned from an auxiliary form of voting and is challenging the traditional form of voting.

Question 3. Can vote returns for an entire polling station or a larger area be declared void if the will of a portion of the voters is beyond doubt?

Ilya G. Shablinsky

Yes, they can be.

Mikhail V. Titov

The votes that are beyond doubt have to be counted in a legitimate manner. The comparison of "legitimate" and " suspicious" votes will be the grounds on which the higher election commission or the court will base the final decision. In the future, revisions to the federal law on this part will have to be carefully considered.

Andrei Yu. Buzin

This calls for a quantitative assessment. If suspicious votes can affect seat allocation, then it is necessary to hold a re-election wherever these votes occurred, which means that the vote returns in this are must be declared void.

Dmitry M. Khudolei

The legal norm that establishes the constitutional and legal consequences of ballot stuffing is rarely used in practice, and there cases of misuse (taking votes away from the unwanted winner) are also few (PEC members fear an official investigation, which, one way or another, could lead to their executives' powers — chair, deputy chair or secretary — being terminated). One cannot say such technology is widely used. I don't think the preventive nature of this norm should be abandoned. Ultimately, we are talking about annulling vote returns only in a specific precinct, but not in the entire constituency.

Olga L. Pokrovskaya

At the moment, the law does not provide for such a possibility. But if we assume that the PEC strictly follows the law when summarizing the vote returns, then any stuffing would have to reveal itself (the number of ballots in the ballot box will be greater than the number of voters exercised their right). So in this part, it is naturally necessary to establish by law the degree of inconsistency that leads to election annulment. It is one thing when, say, there are 1-2 extra ballots per 500 voters, and another when there are 50-100.

Aleksei A. Elaev

After the vote count is completed, it is no longer possible to annul the votes in a specific ballot box. In this case, the primary challengeable link will be the polling station as a whole, which will be the focal point in the analysis of what happened. Then, taking into account the number of polling stations whose results are not taken into account in the vote count, it is necessary to decide on the results of the election as a whole if there is more than one polling station in the constituency.

Aleksei V. Rybin

I believe that vote returns should be annulled with respect to one "basket" (ballot box, crate, if their contents have not already been mixed). In other words, the rule similar to that in clause 12 of Article 68 of the Federal Law No. 67-FZ should be applied when all ballots in the portable ballot box are declared invalid.

Therefore, if violations were found at an REV polling station (where there is only one virtual "basket"), the results are considered invalid for the entire "basket". If a ballot was stuffed in one ballot box and not in the other, the ballots in the ballot box that was stuffed should be declared invalid. A different approach would result in a massive violation of the active right of voters whose ballots ended up in an untampered ballot box.

Olga V. Balabanova

Using the ballot box as an example, it is easy enough to determine the extent to which the violation affects the will of the people. One may apply absolute and relative values and mathematical methods. Things are much more complicated when the degree of influence of the violation on the will is subjective in nature. For example, when the rules of campaigning are violated.

Nikolai I. Vorobyov

They can (or cannot): depends on the actual circumstances. Vote returns cannot be annulled in a specific part of an area. Vote returns may be annulled at a particular polling station or at several — once more — specific polling stations where votes are counted. For example, if we are talking about a part of a constituency, it is still possible to invalidate (or not to invalidate) the vote returns only at specific polling stations, taking into account the violations that may have influenced the validity of the expression of the will of the voters. And then, taking into account the number of polling stations and corresponding voters, one should consider how (and whether) it could have affected the overall election results in the constituency.

It is a different matter when it comes to annulling the vote returns at a polling station because of violations that took place during, for example, remote electronic voting, or voting "at home", or voting by absentee ballot, etc. In this case (if violations have been found), when addressing such an issue, it is mostly necessary to find out to what extent the returns of such voting (electronic, home voting, etc.) influenced the general vote returns at the polling station in question.

For example, the records of precinct election commissions from recent years show that in some of them, the number of voters who allegedly voted "at home" outside the polling station sometimes stands at several hundred, exceeding at times the number of voters who voted directly at the polling station, which understandably raises doubt about the validity of such returns. Here it is necessary to check and find out the number of applications for at-home voting and the number of ballots that ended up in the portable ballot box. And the main point is to find out if the voters actually filed applications to vote at home. The next necessary step is to find out whether and to what extent such voting influenced the overall vote returns at the polling station in question.

However, in addressing this issue, one should keep in mind the circumstances of the case. I'm reminded of a similar incident from my personal experience as chair of the Tambov Oblast Election Commission in the 1990s. I was one of the officials who reviewed a complaint about the election of deputies to the representative body of the city of Michurinsk. During the review, the precinct election commission did a recount of voter applications for at-home voting and ballots marked by voters. It was discovered that one of the portable ballot boxes contained one ballot more than the number of applications filed by voters requesting to vote outside the polling station. One of the applications was not properly processed through the fault of the members of the election commission responsible for at-home voting. No other violations were discovered. Given these circumstances, the precinct election commission felt that there were no grounds to declare the ballots contained in the portable ballot box invalid. As chair of the regional election commission, I thought (and still think) that the actions of the election commission in that case were reasonable and legitimate. The commission decided against acting on formality and declare a dozen and a half ballots with the marks of those who had voted invalid.

In summary, the circumstances surrounding vote tallying may vary. This fact has to be taken into account every time when conducting reviews and making legally significant decisions.

Ivan A. Brikulsky

I believe there can be no clear and definite answer to this question. This is how I would put it: a clear answer, a kind of universal formula, would lead to even more rights violations than it should have prevented.

In the case of elections, too many rights and constitutionally significant interests are involved and intertwined, and choosing one party will inevitably lead to the disadvantage of the other, although such an element of the proportionality test as "balancing" is intended to leave rights unaffected or, rather, to find a reasonable balance between two conflicting interests without infringing on a fundamental right.

Consequently, all efforts to establish such a balance should really be left to the court, not to the legislature. Even opposing the chosen approach, such as in the case of Trump, does not indicate that the courts should be stripped of their autonomy, since a rigid framework would do more harm to both voting rights and guaranteed judicial protection than its absence, which still preserves the opportunity for the courts to amend the practice in the future.

Question 4. Can vote returns be declared invalid if not all possible measures have been taken to determine the actual will of the voters?

Olga V. Balabanova

By all means, all the relevant statutory means have to be taken (vote recount).

Ilya G. Shablinsky

Not exactly, since there would be no formal grounds to declare the vote returns invalid.

Andrei Yu. Buzin

No. It can easily lead to disregard of voter opinion as well as electoral fraud. It is necessary to give a clear definition of "all possible means," however.

Dmitry M. Khudolei

No, I believe. Judicial practice, in general, also requires vote recount. Only when it is impossible to determine the actual will of the voters is the result of the election declared invalid.

Nikolai I. Vorobyov

Why can't they be? I believe they can. What does it mean — if not all possible measures have been taken to determine the actual will of the voters? By the time the election commission, and especially the court, makes the corresponding decision, such measures must have been taken. The law stipulates election commissions to do this. And not only does it stipulate, but also provides all the necessary capabilities to do so. And if contrary to the law such measures are not taken, all the more so the higher electoral commission or the court can and must decide to declare the vote returns invalid.

Aleksei A. Elaev

The question is what exactly constitutes "all possible measures". In this case the question should be approached legislatively, since ad absurdum it could go as far as asking every voter on the list whether they really took part in the vote and how they voted, with the suggestion that they "identify" their own ballot. Therefore, necessary measures should be taken to confirm any suspicions in vote returns and the source of these suspicions. Whether a recount (which in some cases is pointless or prevents vote returns from being determined) is worthwhile should be left to the will of the legislator or the established judicial practice.

Aleksei V. Rybin

That's what the courts do in reality [1; 2]. Ideally, the court should ascertain what the actual distribution of votes was, whether the one named by the commission as the winner actually won. However, this is where the shaky ground of a discussion that stretches back to Soviet times starts, that is, whether the court ought to establish the objective truth in a dispute. After all, despite the fact that electoral disputes fall under the Code of Administrative Judicial Procedure, there is an adversarial element to them, which means that the truth is procedural rather than objective in this case. In such a situation, the court determines the place in the process where it stops to consider the evidence and concludes that there is truth in the case. So my answer is that the court can do it.

Question 5. Should the court estimate the number of "suspicious" votes and compare that estimate to the difference between the winner and their main opponent?

Mikhail V. Titov

I believe it should. Any measures that protect the legitimate outcome of an election are necessary.

Olga V. Balabanova

The courts should establish a uniform practice on this issue. The law cannot provide for everything. It's more a question of judicial independence.

Ilya G. Shablinsky

What do you mean by "suspicious" votes? I find it hard to see what kind of legal assessment can the court give to "suspicious" votes.

Andrei Yu. Buzin

Yes, it should. I think that in doing so, the court should rely on expert assessments.

Dmitry M. Khudolei

The quantitative criterion applies quite well, but with a caveat. I do not think it is necessary to estimate the difference of votes in the case when a candidate commits criminal acts (use or threat of violence, bribery of voters, etc.; since their office will be terminated anyway upon conviction for these acts). Judicial practice knows many examples of proven facts of bribery of voters, which were not grounds for annulling the election results because of the large difference in the number of votes. I do not think there is any way to agree with this statement in cases where the bribery was carried out either by the candidate themselves (the perpetrator in the criminal law parlance), or by others on their behalf (i.e. the candidate was the instigator or organizer).

Aleksei V. Rybin

Yes, it is the "gap" between first and second place that should be evaluated by the court. If the pool of disputed votes is clearly less than the "gap," the claim should be dismissed.

There is another point of view, expressed by Oleg Kravchenko [17], for example, who believes that the loss of even a single vote should lead to the annulment of the election in the whole constituency. I tend to agree with the viewpoint expressed by Lyalya Alekhicheva and Aleksandr Postnikov [3].

Aleksei A. Elaev

There is no such concept as a "suspicious vote" in the legislation, but given a small difference between the winner and the opponent, the facts of violations of electoral law clearly affect the election results, and therefore have an impact on how the results are determined. Therefore, proven violations with respect to a certain number of votes must be interpreted in light of their impact on the gap between the candidates.

Nikolai I. Vorobyov

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. They cannot be used in court proceedings in any capacity. All the more so, the court cannot in the course of the trial and in making its decision, as they say, compare the candidates' chances of winning, or think about which of them may or may not win the election. Therefore, one should try to turn any "suspicious things" into facts in the course of court proceedings by presenting appropriate evidence.

The court can and must base its decision only on properly established facts. In other words, the decision must be based on established facts of violations of the law, which, as stated in Article 77 of the Federal Law "On Basic Guarantees of Electoral Rights...", "do not make it possible to reliably establish the results of the expression of the will of voters" or "establish the actual will of the voters".

Ivan A. Brikulsky

An analysis of two court cases (in the United States and Russia, see my commentary at the end of this publication) leads me to the following conclusions: the courts do not assess the electoral dispute in light of the comparison of the difference between the votes de jure, but de facto are forced to take sides, that is, to assume the burden of political assessment as well. They cannot escape this burden, even if they officially refuse to assess these arguments.

Question 6. Should a decision to annul the election results be made if the winner changes when "suspicious" votes are excluded?

Mikhail V. Titov

In that case, another candidate should be declared the winner. That is, of course, if the "suspicious" votes were excluded in accordance with the law.

Olga L. Pokrovskaya

In that case, another candidate should be declared the winner. Such cases took place as a result of administrative lawsuits against the results of municipal elections in St. Petersburg. For example, in the 2019 election in the municipality of Novoizmailovskoye, six municipal council seats were transferred from one candidate to another as a result of excluding votes received by the winners through electoral fraud [10; 11].

Olga V. Balabanova

Suspicious votes do not express the real will, so in this case I am in favor of annulling the election results.

Aleksei V. Rybin

No, it shouldn't. In this case the court must remove suspicious votes and compel the organizing commission to prepare a new protocol (according to clause 10 of Article 77 of the Federal Law No. 67-FZ).

Andrei Yu. Buzin

The number of "suspicious votes" is an estimation, a model. Therefore, in this case, after the court establishes the number of suspicious votes and the resulting change in election results, a repeat election must be held. However, the answer to question 4 should be taken into account: if it is possible to faithfully reproduce the vote returns (that is, to recover the raw data, as it was possible to do in Vladivostok, for example), then a final decision about the winner can be made.

Dmitry M. Khudolei

Some foreign countries employ such a norm, but I don't think it's fair. It is possible that a constitutional delict will be committed by a straw person on behalf of another candidate or party (the act is committed openly, for example, illegal campaigning on the day of silence, which is then used by the losing candidate as a means for winning). It is my opinion that election results should be annulled and a repeat election scheduled if the number of "suspicious" votes results in a change of the winner in a single-seat constituency.

Aleksei A. Elaev

The question echoes question 5. In this case, if there is actual proof that a certain number of votes could have influenced the election results, then such results must be annulled, because there is evidence of inconsistency of the election results with the supposed will of the voters. On the other hand, if there is proof that "suspicious votes" had nothing to do with the winning candidate, then there was no influence on the election results, because this would have enabled legal abuse on the part of losing candidates.

Question 7. What decision should be made if in a multi-seat constituency, the election of some candidates raises no doubt, yet with regard to others the will of the voters cannot be established?

Ilya G. Shablinsky

Candidates whose election raises no doubt should be considered elected.

Andrei Yu. Buzin

This is not something that can possibly happen. If it is impossible to clearly establish the will of the voters regarding some of the candidates, the remaining candidates are also in question, since votes are connected in a multi-seat constituency. A repeat election should be in order.

Olga V. Balabanova

When holding elections in a multi-mandate constituency, violations by certain candidates, which are specified in clause 2 of Article 77 of the Federal Law "On Basic Guarantees...", may annul the decision on the election results only insofar as these candidates are concerned. I believe the same approach should be maintained in the case of violations committed by other parties (for example, it has been established that votes were distorted in favor of a specific candidate, but their personal involvement is unclear). For vacant seats, a repeat election can be held. With regard to REV as we now know it, I believe there is a systemic violation of the principle of independence and transparency in the activities of election commissions, which cannot be remedied by a partial annulment.

Dmitry M. Khudolei

Let's use the rule that was described earlier. If the candidates who are to be declared winners (those who received a substantial number of uncontested votes) have been found not guilty of a constitutional and legal delict, they should be declared elected. With respect to unallocated seats, additional repeat elections should be held (there is no such term in Russian legislation, since the procedure is not provided for).

Aleksei V. Rybin

I shared my ideas on the single-seat constituency earlier. The same might apply in this case. If some of the candidates won undisputedly, they and their voters are not subject to constitutional liability for being innocent, or vice versa, for violations committed against other candidates. If it is possible to single out these violations and "scrap" the candidates in whose favor they were committed, then it is these candidates who should be held accountable by having their election results annulled.

Aleksei A. Elaev

Such a situation would be virtually impossible in a multi-seat constituency, since people vote for several candidates at the same time (assuming that there is no evidence of "suspicious votes" in favor of one of the winning candidates). Therefore, it is necessary to assess the election results within the accuracy of the candidate with the least winning votes, and then decide whether or not to annul the election as a whole. The existing legislation does not allow for "partial annulment" of election results in multi-seat constituencies, allowing for repeat elections only in a limited number of cases. It would be appropriate to amend it to allow for the said "partiality" in some cases when scheduling a by-election — not for all seats, but only for those that became subject to annulment.

Olga L. Pokrovskaya

I can't imagine such a situation.

In a multi-seat constituency election, all candidates are placed on one ballot. In establishing vote returns at polling stations, provided that elections were held in compliance with the law, it should be quite easy to determine the number of votes cast for each candidate. It should be easy even with multiple recounts.

However, if "something goes wrong" during the vote count, and only some candidates' results raise doubt, then the commission should either do a recount or announce the final vote returns.

The process of determining election results in a constituency is strictly mathematical, and if there is no doubt about the validity of vote returns at the polling stations, the winners should be determined by the sum of the votes they received.

It's an entirely different matter if there is doubt about the results. In that case, either the higher commission or the court can annul the vote returns at some polling stations, while election results are determined by taking into account the remaining polling stations. In any case, if the legislation does not allow voting "against all" or provide for a vote threshold, then all the seats are filled, not just a portion. Or, if there are grounds for that, the elections in that constituency are declared void.

Question 8. What decision should be made when there is no clarity on the correct allocation of a small number of seats when voting for party lists?

Olga V. Balabanova

In a proportional representation system, my only solution is to annul vote returns.

Andrei Yu. Buzin

First, every effort must be made to re-establish the correct number of votes cast and to recount the ballots in an open and transparent manner. If this does not determine the result, a repeat election must be held.

Aleksei A. Elaev

In this case, if the election is declared void on proper grounds, a repeat election must be held; there is virtually no other option.

Ilya G. Shablinsky

I have a hard time imagining the situation, but I believe this (small) portion of seats may remain unallocated. Granted there is no clear solution in the legislation, the faction can conjure an agreement, even if by drawing lots.

Mikhail V. Titov

The solution in this case is clear: the complaints should be considered and the votes at the " suspicious" polling stations should be recounted. If the vote (election) returns have already been established by the relevant election commission, the court must do the recount when reviewing the administrative claim.

Dmitry M. Khudolei

There are two solutions — either to cancel the election results and schedule a repeat election, or to take the seats away from the guilty party. The second rule is unknown to the Russian legislature. To reiterate my opinion: an innocent party should not be held responsible for someone else's actions in cases where the voting at the polling stations was deemed valid (as in there was no evidence of ballot stuffing). If a party violates the electoral legislation (for example, by exceeding the spending limits of the election fund), but does not gain enough votes to win first place (in foreign countries this party usually has the right to form the government cabinet), then it is quite acceptable to take away its seats (however, there is no need to recount the votes and redistribute the seat, like A.Hitler did). Ultimately, some seats will remain vacant, unless this results in the representative body being declared inoperative (no quorum for the adoption of the constitution, statutes, constitutional laws, etc.).

Olga L. Pokrovskaya

The solution in this case is clear: the complaints should be considered and the votes at the "suspicious" polling stations should be recounted. If the vote (election) returns have already been established by the relevant election commission, the court must do the recount when reviewing the administrative claim.

In practice, however, this mechanism is often used to obtain the desired result instead of clearing doubts.

Most regrettably, St. Petersburg has a wealth this kind of experience. The way results of the 2011 election of deputies to the Legislative Assembly of St. Petersburg were determined was particularly spectacular. At that time, the vote recount did not just give United Russia a substantial increase in the number of seats at the expense of other, mainly opposition parties; it also resulted in a redistribution of the votes received by candidates from all the lists in certain territories. As a result, the leaders of some party lists, who received the highest number of votes in their territories according to the election day count, moved beyond the passing threshold after the recount, and their places were taken by outsiders who gained more votes during the recount.

Aleksei V. Rybin

One would have to address the "gap" between the parties on the disputed seat. Intriguingly, this gap could theoretically amount to a single vote. Regarding the disputed number of seats (if the "gap" is "covered" by a substantial number of votes), it should be dealt with through a by-election.

Although there is an alternative point of view, which calls for a repeat election in the entire constituency. For example, repeat elections were held in entire constituencies in Austria [33] and Sweden [18] because of postal voting violations. A repeat referendum was held in Switzerland [32]. Following the logic of these decisions, our example would require a fully repeat election. However, I believe this is an unnecessarily heavy-handed approach to dealing with such a situation.

Question 9. Is it possible to develop criteria for assessing the extent of violations unrelated to voting?

Ilya G. Shablinsky

Yes, I believe. Violations during the campaign cannot be grounds for annulling election results. Unlawfully denying registration to a popular candidate is grounds enough, though.

Olga L. Pokrovskaya

Such criteria can be developed, yes. But under Russia's current political system, no fair criteria can be recognized by law. Even if they are, they will simply not apply.

Mikhail V. Titov

It is possible indeed. Necessary, even. However, this is a subject for an entirely different discussion. In my opinion, the amendments and changes to the Federal Law "On Basic Guarantees..." made in the early 2000s require a major "inspection". This is the only way to achieve the desired outcome.

Andrei Yu. Buzin

This is something that can and should be done, as it would allow an independent court to reach more well-rounded decisions. However, it is impossible to develop perfect criteria, just as it is impossible to create a perfect law. It is important that there be a separation of powers, an independent court which can be entrusted with making the final decision.

Olga V. Balabanova

It is impossible to anticipate all the criteria, but judicial practice should strive to do so. In some cases, sociological surveys are used as evidence. For example, a candidate's rights are restored after their registration was denied or revoked, and the election has already taken place.

In 2006, in Klimovsk (Moscow Oblast) 24 candidates were denied registration. Their rights were restored by the Central Election Commission three days before the vote, but their names were not included in the ballots. The courts issued different decisions. In the end, the election was declared void because voters did not have the opportunity to "express their opinion on the candidates in question". At present, the law requires proof that the violation affected the expression of will justifying it by the need to keep private and public interests balanced. In this case, however, I do not separate the private interests of the disenfranchised candidate from their rights as a voter, even if I had no prior knowledge of this candidate. To further the argument, there is a complex filter for obtaining candidate status at every election level.

Dmitry M. Khudolei

I can name one such criterion that is absolutely necessary right away: the fact of committing a criminal act (election results should be annulled only in the case of such campaigning). Unlawful denial of registration to a candidate may be regarded as grounds for annulling election results if a member of election commission commits a crime (which is nearly impossible to prove). As a matter of fact, the electoral legislation should be liberalized and the list of reasons for denying or revoking a candidate's registration should be made shorter. Then the very idea of developing objective criteria for assessing the extent of violations would go away. Any sociological survey results can hardly be considered objective, especially since it is not clear how popular should a candidate be so that the entire election results can be annulled if they were not allowed to run for office. In mathematical terms, even a candidate with 3-5% of the vote would be able to interfere in the race ("siphon off" some votes from the main candidates). I don't think it is possible to develop any objective criteria in such a case.

Aleksei V. Rybin

I don't suppose it can be done. I think this is a matter of the court's discretion, and the legislature is unlikely to produce a rule that would be, on the one hand, a general rule and, on the other hand, sufficiently sensitive to potential precedents to cover all the major life situations that tend to result in a distortion of the will of the voters.

In this case, it is the court that should act as a micro-legislator, which, based on the circumstances of the case, should conclude whether or not a violation could have influenced the will of the voters (as in how it manifested itself, how it played out at the polls, etc.).

Aleksei A. Elaev

The question echoes question 1 and the example that compares tax audit results with the courts' assessment of violations. Chances are, if such criteria can be developed, it is only in a case where violations are apparent and may cast doubt on vote returns. Still, such a case would require very specific preclusive quantitative criteria for violations. Otherwise either the election commission or the court will have so much discretion to use that it will effectively lead to arbitrary annulment of the election. For example, in the case where a candidate's registration was unlawfully revoked — the fact that became known after the votes were tallied — the question may be controversial depending on whether the candidate was self-nominated or represented an electoral association; whether they ran in a single- or multi-seat constituency, or they ran in a party list. The number of such candidates should also be considered, so that the balance of public interests and those of the candidate is addressed. What appears to be a "tragedy" for a specific candidate may have zero effect on the balance of power in a representative body or in a specific election. But in some cases it is possible to come up with a mechanism of legal compensation for losses and additional payments to such candidates, a mechanism that has not yet been fully elaborated theoretically.

Nikolai I. Vorobyov

Technically, such criteria can be developed. But what good would that do? None. The problem is how to "connect" these violations with the reliability or unreliability of the expression of the will of the voters. It is virtually impossible to do. No one (the judge included) can objectively, reasonably and accurately answer the question of how and in what way, for example, illegally produced leaflets and posters affected (or did not affect) the expression of voters' will, and how many such affected (or unaffected) voters were there?

By the way, the legislation already meantions something similar in clause 2 of article 77 of the Federal Law "On Basic Guarantees of Electoral Rights..." as grounds for possible annulment by the court of electoral commission's decision on the established (certain) results of the corresponding elections. These provisions can hardly be regarded as legally precise and substantiated legal norms. It seems that the circumstances mentioned in this clause only raise questions and doubts about their "connection" with violations that prevent the establishment of the actual will of the voters.

The complexity of the issues related to annulling vote returns and election results, which were discussed at the present roundtable, further stresses how important it is to prevent unlawful actions (fraud, ballot stuffing, and other violations of the electoral legislation) that distort the actual will of the voters during the voting and vote-counting processes before it comes down to annulment itself.

Ivan A. Brikulsky's commentary

On question 1.

As a matter of fact, the question seems a little provocative. It might seem that the monster of this legal uncertainty can be easily slain, much like in the myth of Theseus: all we need to do is untangle the ball of thread, that is, weigh the arguments for and against and assess compatibility. In other words, there is a dilemma to be resolved. But does the dilemma exist at all?

Before I continue, here are two noteworthy points of view expressed by electoral experts regarding the U.S. presidential election. In his response to my paper [5], Andrei Buzin pointed out that the U.S. courts were not supposed to assess the constitutionality of postal voting, because that "would mean going far beyond the [legal] claims", and there was no need to "lump together" the legal flaws of postal voting and specific violations. According to Andrei Buzin, Trump and his lawyers ideally should have challenged the very procedure of postal voting before the procedure even went into effect, which plaintiffs had failed to do [8]. Another expert, Igor Slabykh, stated that any objections to postal voting amount to the fact that such violations could have taken place, "in the absence of evidence that that violations took place (and there was no such evidence) the debate loses all substance and goes into the maze of theory" [31].

Both experts' reasonings have something in common: their arguments go from particulars to generals, that is, if there was hardly any evidence of violations, if the courts did not support the plaintiffs' arguments, then postal voting is presumed to be transparent, legal, constitutional, etc.

Let's remember an idea a Generation Z member like me would refer to as "based": in the relationship between the individual and the public authority (the state), the individual is the weaker and more vulnerable party. To balance this situation, the state creates various mechanisms that allow the weaker and more vulnerable party to protect its interests. Obviously, one of such mechanisms is judicial protection, the key feature of which is that it acts as a guarantee of all rights and freedoms in general. But how can an individual confront the state if he/she presumes that his/her rights are being violated, and the state has unlimited resources and substantial instruments to exert pressure on the individual? Therefore, the fundamental principle of the relationship between the individual and the state is the presumption of the state's guilt. This means that it is up to the state to prove the legality (legitimacy) of its actions, adopted acts, etc. Simply put, the state must justify itself to the individual, and all presumptions in public law disputes should side with the individual, not the other way around.

To argue otherwise is to justify the state by taking the side of the stronger party. Such logic automatically entails the threat of justifying any arbitrary action, regardless of whether it is carried out by a democratic government, the courts, or an autocrat. Ergo, if there are justifiable doubts about the legality of such a decision, if the public authority cannot prove this legality and transparency, the courts have to unfailingly side with the individual. Regardless of their political views, it is unfair to deny a person their right using something like "come back when you have proof" as a reason. If a right cannot be exercised or there is no effective mechanism for exercising the right, then the right does not exist. If a right has been violated and it cannot be restored, then there is no such right, nor is there any possibility of judicial protection and effective legal control of public authority. The inability to review defective norms in court inevitably results in arbitrary treatment of the individual. The source of this exclusion of court review can be either the norm itself, which does not permit its court review, or the court, which neglects its own authority and actually removes itself from addressing the problem.

An important point to emphasize: only the individual can decide exactly when they can seek judicial protection (within a reasonable time, of course), that is, the moment when they need to exercise their right. Only the individual can choose a particular method of protection of their rights and apply them when they believe that the rights have been violated, are being violated, or there is an imminent threat of such violation. Anything else would mean that the public authority can arbitrarily determine the moment the right can be exercised, as well as the need to protect the right and the specific method of protection. Therefore, the fact that a citizen did not challenge the questionable auxiliary voting procedures before the voting day(s) does not at all imply that they agreed to such procedures, much less that there was any political intent. At the very least, because a citizen does not have to justify themselves to the state: after all, there can be a variety of reasons, including awareness that the rights are under threat, which could only come later. To deny judicial protection on this basis, or to justify the denial of court review, is to agree that arbitrariness is acceptable.

If there is no presumption of guilt of the state, then in public law disputes the individual must actually be justified before the state, which already means a violation of the presumption of innocence of the individual. Until proven otherwise, the principle of the unconditional righteousness of the state, especially the integrity of postal or electronic voting, results in a situation where any reasonable doubts an individual may have about the lack of transparency of such voting forms are not considered by courts as legally significant, meaning the "burden of proof" is shifted to the individual, who objectively cannot prove facts, information, etc. that are out of their reach. I'm going to describe the consequences that this brings.

The first consequence is something I've stated earlier: inability to review the actions of the state in court, which means inability to protect one's rights. While at first it may seem that the problem at hand only concerns electoral law, especially passive suffrage, a closer examination makes it clear that the right to a fair trial is violated as well. While constitutional law may allow for restrictions on passive suffrage in constitutionally relevant cases, the right to a fair trial is typically regarded as a fundamental right, meaning those that under no circumstances can be restricted or violated. If the state interferes with this right in any manner, it is considered a violation, and is therefore unacceptable. Such interferences may include may be both active and passive, the latter meaning cases where the state fails to create effective mechanisms of rights protection. In such a case, it is the state who should be held responsible. Moreover, in its rulings, the Constitutional Court of the Russian Federation said that the very fact of legal ambiguity is enough to recognize a norm as unconstitutional.

The second consequence is that enforcement effectively confirms the right of the state to create, at its full discretion, forms of voting or electoral institutions that will continue to be impossible to monitor or authenticate. But what prevents the state from stopping at only one sector and sphere? It is quite naïve to believe that by sanctioning broad discretion in one sphere, the state will stop there: similar discretion may apply to other sectors, and the same exact reasoning will be used to justify it. It was the argument about the legislator's permissiveness that the Constitutional Court used in its decisions to justify the right to impose retroactive restrictions on rights in the cases of Lev Shlosberg [27] and Nikolai Kuzmin [28].

There is a recent example with the regulation of REV, which was used in the elections of deputies to the State Duma of the eighth convocation. At that time, there was only a short line in the federal legislation concerning REV, and the norm itself was formulated as the right of the CEC to regulate this new institution at its own discretion. Based on this norm, the CEC adopted an REV procedure that prevented candidates, observers and voters from confirming its transparency before, on or after election day. The entire process takes place out of view of the key participants in the electoral process. How did attempts to challenge the procedure of REV and the alleged violations turn out? First, the applicants were unable to prove to the courts any violations whatsoever (because the violations could not be traced). Second, by the fact that the courts examined the REV procedure for compliance with an unspecified law. An appeal to the Constitutional Court did not help either: the acts of the CEC cannot itself be the subject of constitutional review. I addressed this issue in an earlier note [6]. In other words, the road to the Supreme Court and the Constitutional Court was cut off, while the source was an improper and unlawful electoral procedure.

The problem of the proper regulation of electoral procedures is a universal one, it is difficult to call it exclusively Russian since it is characteristic of many modern legal systems. For example, a similar problem was encountered when postal voting in the U.S. was challenged during the presidential election. No amount of national exceptionalism, regardless of the state, can automatically eliminate this problem, nor can it eliminate the need for a presumption of guilt on the part of the state. One could say that it is an important element in a rule-of-law state.

Legal flaws in electoral procedures have more profound consequences than mere legislative seat allocation or individual voting rights. They infringe on the most important thing of all: the right to a fair trial and judicial review of the state's actions. One could say that there is a domino principle at work in constitutional law: the state's infringement of one right inevitably causes the violation of a number of other rights. This is why the threats and risks posed by using a voting procedure that is objectionable (from the point of view of the Constitution or the law in general) are much greater than those posed by annulling vote returns in a particular location.

As a result, we have to agree with the "maze of theory" phrasing. As Georg Hegel said, if facts and theory disagree, all the worse for the facts. For better or for worse, you can't build an effective mechanism to implement and protect of the law without a "maze of theory". That's the foundation. Whatever democratic views or sincere impulses, whatever examples "in the field" or personal feelings might justify the contrary, deviating from this foundation inevitably leaves the individual one-on-one with the Leviathan. And this is something that should be avoided under any circumstances.

On question 3.

In this case, I will once again refer to the discussion Andrei Buzin and I had in Electoral Politics. Like myself [5], Andrei Buzin refers to the test of proportionality (calling it co-dimension) in order to assess how correct were the courts in dismissing Donald Trump team's arguments and comparing the ex-canidate's contentions to the consequences that satisfying these contentions might bring. In other words, our debate boils down to what is more important, meaning we're both stuck with the core issue of the proportionality test, but use different words to describe it.

However, I have to express a reservation: I doubt whether the proportionality test can be at all applied in cases where election results are revised or annulled. After all, the proportionality test is applied wherever the rights of an individual or a group of individuals are directly violated or restricted.

On question 5.

When considering checks and balances, we always see the main threat as coming from the presidential-executive branch and less often from the legislative branch. In the meantime, constitutionalism is also about containing any powerful entity. Courts, albeit to a lesser extent, are no exception: the transformation of a court from an arbitrator into a full-fledged political actor with its own interests can bring no less trouble than the concentration of power in another institution of power. The Constitutional Court of Russia could be used as an example: from 1991 to 1993 it played the role of an independent political actor, choosing sides in political conflicts, etc. This case set a precedent for Kazakhstan, where the 1995 constitutional reform abolished the Constitutional Court and replaced it with the Constitutional Council. There is also the Supreme Court of Ukraine, which in 2004 effectively authorized the third round of presidential elections, considering that fraudulent activity in the second round interfered with the establishment of the will of the voters. At that time, Viktor Yanukovych, who had won in the second round, lost to Viktor Yushchenko after a new vote. Ukraine's Constitutional Court has also kept up with being politically subjective: after the 2004 constitutional reform, which established a parliamentary-presidential form of government, in 2010 the Constitutional Court cited irregularities in the adoption of amendments to "rewind" the system and restore the presidential-parliamentary form of government. Naturally, history knows plenty such cases.

What do they all have in common? 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. 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.

Is it actually so, however? We shall consider two examples.

The first example is the 2020 U.S. presidential election. There was even a discussion in Electoral Politics between my piece on why Trump turned out to be right [5] and Andrei Buzin's critical remark [8]. To summarize, both authors interpreted the application of the proportionality test differently (co-dimensionality and proportionality are synonyms), namely one of its elements, the "weighing" (sometimes called the "balancing" stage) between competing values and interests. In assessing the arguments of Trump and his lawyers, U.S. courts agreed with an occasional argument about the committed violations, yet argued that reviewing the returns would cast doubt on far more votes than were called for to be annulled or recounted. In other words, "Trump's claims are disproportionate to the consequences that would follow had those claims been met", and court intervention in the counting process, which may lead to a reconsideration or annulment of the results, "is an excessive and radical step that is not in the public interest, which implies a prompt and effective tallying of election results".

This approach allowed the courts to sidestep the assessment of the arguments that Trump's staff had made, including arguments about the non-transparent and unconstitutional procedure of postal voting. It must be said, however, that in complaints and lawsuits in some states, Trump's lawyers either explicitly pointed out that the winner depended on the court's decision, or asked that annulment/recount involved the exact number of votes that would be enough to ensure Trump's victory. The courts handled this differently, either ignoring such arguments altogether or giving their own assessment of the alleged number of invalid ballots, reporting that even a revision of the results would not result in Trump's victory. On the one hand, it seems that the courts were trying to avoid giving a political assessment, or rather, to disengage themselves from it altogether. On the other hand, they were effectively giving it by refusing to examine the violations and to consider the facts of the case.

The second example is the 2019 Moscow City Duma election. This was the first use of REV, albeit only in three constituencies. In constituency No. 30, the main competitors were two self-nominated candidates, Margarita Rusetskaya and Roman Yuneman. Despite the fact that Rusetskaya's victory was largely achieved thanks to REV, only 84 votes separated her from Yuneman, who won in almost all polling stations. Although the main arguments centered mainly around technical failures, Yuneman emphasized the 84-vote gap among his arguments about infringement of rights as a candidate. In theory, the court should have paid close attention to the "REV case," both in view of its novelty and Rusetskaya's ambiguous victory. However, the courts either did not recognize the argument about the infringement of the plaintiff's rights as legally significant, or did not give it any weight at all, essentially ignoring it. Courts pointed out that only substantial violations of the law were required to repeal the commission's decision on the vote returns—the violations that prevented the establishment of voters' will. Although the wording was different, the courts also "weighed" the alleged organizational violations in REV against the consequences they might entail, meaning that they applied their "own" criterion of co-dimensionality.

What do these two cases have in common?

First, both candidates struggled against a non-transparent and uncontrollable procedure, whether it was postal voting or remote electronic voting. In fact, both found themselves in circumstances where the burden of proving the non-transparency of the state-organized system fell on the individual rather than the state. In other words, their "loss" to public authority was predetermined and apparent.

Second, the courts considered the plaintiffs' claims from a proportionality perspective: what would be the greater loss to rights and public order — the satisfaction or denial of the plaintiff's rights? I agree that the courts responses came in different forms: American courts did consistently evaluate the application of the proportionality test, while Russian courts did not pay as much attention to this argument. Nevertheless, they reached the same consensus.

Third, de jure, the courts have always avoided, or at least tried to avoid direct assessment of the gap between the candidates as a legally significant fact, although de facto they still chose their side: refusing to take a side in determining the winner in a constituency is in fact choosing a specific party, since it is a zero-sum game. I would like to say that their position is de jure related to the independence of the courts, their role as arbiters in the realm of political fervor. But we should not forget the risks of political responsibility for judges and the subjective reluctance of judges to assume such political responsibility: guarantees of judicial independence cannot ensure their complete independence from the actors who influence their appointment, regardless of whether this is done by presidential decree, by decision of the legislative body, or by direct election.

Many colleagues may find subjective and harsh the resulting conclusion: in assessing non-transparent forms of voting and the arguments of plaintiffs, both Russian and American courts largely reach the same consensus.

Received 06.03.2023, revision received 10.03.2023.

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