Elections and the Pandemic

Bainova M.S., Bocharov Yu.B., Buzin A.Yu., Vorobyov N.I., Grishin N.V., Elaev A.A., Korgunyuk Yu.G., Nadezhdin B.B., Pokrovskaya O.L.

Abstract

In this piece, legal professionals, political scientists and sociologists discuss the issues of holding elections in the pandemic. Among issues discussed are the possibility of postponing elections, acceptable restrictions for campaigning and voting procedures, control over the voting and vote tallying processes as well as possibilities and conditions for early voting, postal voting and remote e-voting.

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Editorial note

The COVID-19 pandemic became a challenge to all the countries in the world. Now, one of the newly arisen questions that demands to be answered is the following: is it possible to hold an election during the pandemic? And if it is, what conditions and restrictions should apply?

Unfortunately, there is little discussion of this matter in academic literature as of yet. We can only point out individual publications [1; 3; 2].

In light of this, we have decided to ask a selection of legal professionals, political scientists and sociologists, electoral researchers and practitioners a series of questions on the matter. We have received responses from nine experts, which readers will find below.

Question 1. What are the epidemic conditions that call for postponing an election? Can such a decision be made after an electoral campaign has started?

Boris Nadezhdin

An election should be postponed if a high sickness rate is projected for the election day(s) in the cities where the election takes place.

Mariya Bainova

If it is a decease with high mortality rate, then an election should be postponed. If it is a regular flu, then it should not be. As for COVID-19, we do not have that much information after all. However, postponing the 2020 spring electoral campaign was a correct decision.

Andrei Buzin

I do not see any compelling reasons to postpone such an important event. There are plenty of safety measures in today's world to prevent people from contracting the disease. I cannot think of a virus so contagious that would make it impossible to safeguard from it. But just for the record, this is a question for doctors and biologists.

What is essential is the understanding that the quality of an election should not depend on the epidemic situation.

These answers remain the same regardless of whether an electoral campaign is already in process or not.

Yurii Korgunyuk

Postponing an election is only possible if there is an epidemic of a disease that is as deadly as smallpox or plague before vaccines were invented. Even the Spanish flu of 1918-1920 did not prevent elections from happening in the countries where they were scheduled by law. The current COVID-19 pandemic is not an obstacle at all in this context. It is quite telling that the United States of America – one of the hardest hit countries – decided not to postpone the 2020 presidential election.

It concerns making such decisions after the campaign has already began to an even greater degree. The events should take a completely catastrophic turn to justify postponing such an election.

Yurii Bocharov

The decision to cancel an election may be made at any moment during a national state of emergency. It does not matter what kind of emergency: a military conflict, an epidemic or anything else that puts a part of the country's population at risk. For example, over the last year, the COVID-19 pandemic forced about 40 countries to postpone their elections. In most of the 83 countries that held their elections on schedule, the turnout experienced an average drop of 20%. Everything therefore depends only on the legislators and the current situation in the country.

Nikolai Grishin

The pandemic revealed a lack of any special arrangements for holding elections in global legislations. Postponing an election is one of the two ways of solving the problem that comes up when an exceptional epidemic situation occurs. By violating the principle of periodic elections, it is possible to hold the election process under "regular" conditions. Another way of solving the problem is to hold an election in a dangerous epidemic situation. However, there is an ensuing chain of threats and risks that may both aggravate the epidemic situation and lead to inevitable electoral violations. Since the experience of holding elections during the pandemic proved to be quite controversial, postponing elections seems a more preferable solution.

Legislations could be amended to provide an avenue for postponing elections in case an abnormal epidemic situation occurs. To prevent any abuse of such an avenue, the decision-making procedure will have to be more complex. The conditions for postponing an election should be based on a possible epidemic emergency that poses a risk to life and health of the majority of a country's population.

Making the decision to postpone an election after the campaign has already began seems possible in exceptional cases only, and also calls for exceptional decision-making procedures that should be provided for by the legislation (making such a decision requires an expanded pool of veto players).

The possibilities of postponing an election should be based on a set of acceptable restrictions on holding the campaign in an epidemic emergency. If the epidemic situation does not allow for holding the election without placing considerable restrictions on the election process, the decision to postpone the election should seem more rational. Holding the election would otherwise lead to serious violations of electoral standards and electoral legislation.

Olga Pokrovskaya

This is a question for infectious disease specialists, who can give a proper answer based on special studies and complex pathogen risk assessment. Any assumptions are bound to be incorrect in this case. I have spent many years working in microbiology, virology and immunology (I quit the profession in 1997 as an associate professor of the department of microbiology, virology and immunology with a Candidate's degree in biological sciences). I do not think my knowledge is enough to answer this question.

Many practitioners believe that limiting face-to-face contact to be one of the main preventive measures against an epidemic. However, this exact measure is incompatible with holding an election.

As for postponing an election after the start of the campaign – this is yet another question better addressed to infectious disease specialists. If a dangerous epidemic breaks out after an election has been called, the election should be postpones. Resuming the election process is a completely different matter. Seeing how these decisions concern fundamental constitutional rights of citizens, all the procedures (including the grounds for suspending and resuming as well as fixing the date for resuming electoral activities) should be prescribed by federal law.

Aleksei Elaev

Officially, the election procedure during a high-alert mode or an emergency was established only after Article 10.1 was introduced into the Federal Law on Basic Guarantees of Electoral Rights in April 2020. Before that, the option of not holding elections during an epidemic was only provided for by the Federal Constitutional Law on State of Emergency.

At the same time, the legislation leaves the issue of postponing elections to the discretion of an election commission at the appropriate level. There are three reasons that justify a potential need to exercise this discretion: 1) if a high-alert mode or a state of emergency is declared in a given territory; 2) if there is a potential threat to life and (or) health of the voters in the election or the referendum; 3) if the commission responsible for organizing the election files a reasoned appeal to the commission that makes the decision to postpone the election (does not apply when the CEC of Russia postpones certain types of elections).

In other words, when declaring a high-alert mode or a state of emergency, the competent executive agency or local authority should determine the specific underlying causes of the epidemic under the provisions of the Federal Law No. 68-FZ of 21 December 1994 "On Protection of the Population and Territories in Case of Natural or Man-made Disasters".

That said, the election commission should make an independent assessment of possible threat to life and (or) health of voters within the meaning of Article 10.1. This means that it is quite possible that in case a high-alert mode or a state of emergency is declared in a given territory, the election commission will make the decision to hold the election anyway.

It is also worth noting that only the respective election commission may take the initiative to postpone the election, not candidates or government agencies responsible for declaring the state of emergency.

As of now, legal precedents on the issue under discussion are few, purely technical and do not address the issue of whether declaring a given situation a threat to life and (or) health of voters is legally acceptable or not. It is unclear if the court is going to hear this issue anew in the given situation or refer it to "political" discretions of the election commission. It is also unclear what means of evidence are to be used when accepting the issue.

It is clear that the actions should be guided by the balance of interests: on the one hand, Russia is a republic, and on the other hand, the individual, their rights and freedoms are the priority of state policy. Can any epidemic postpone elections or should there exist morbidity and mortality rate thresholds set specifically to determine the need to postpone election processes? It is likely that the statement made by a health inspector will be prioritized both while the case is reviewed by the election commission and in court appeal.

I believe that it would be more reasonable if the said decision is made by a relevant court instead of election commission after all the circumstances justifying postponing the election have been examined. The decision-making process should include representatives of candidates (if they have already been nominated), parties and voter associations. This will enable both the use of all means of evidence provided for by Russia's Code of Administrative Judicial Procedure and hearing witnesses and experts on a different procedural level. Election commission is not a legal agency, so it its capacity to call witnesses, hear the parties and verify evidence is limited.

Nikolai Vorobyov

Currently there are no specific epidemic-related reasons (grounds) for postponing the regular (scheduled) legislative election in Russia, as neither a high-alert mode nor a state of emergency has been declared. If the epidemic situation in the country deteriorates to the point where there is once again a threat to "life and (or) health of voters" (citizens), then the Central Election Commission (CEC) of Russia may order (decree) to postpone the scheduled election under Article 10.1 of the Federal Law "On Basic Guarantees of Electoral Rights and the Right to Participate in Referendums of Citizens of Russian Federation".

At the same time it is worth pointing out that the said article from the Federal Law "On Basic Guarantees of Electoral Rights..." could use better wording. Although its title mentions holding elections under a declared high-alert mode nor state of emergency, the article itself only provides for postponing the voting process. The modus operandi for a scheduled election is clear – the decision to postpone it is made by the CEC of Russia. However, the text of the article is unclear on who and how makes the decision to postpone a mandatory election that has not been scheduled yet in a high-alert mode or a state of emergency. Unfortunately there are no federal laws that would clarify this point as of yet.

Common sense says that the decision to postpone an election (not the vote!) should be made by the agency responsible for scheduling elections.

Therefore, if we consider provisions of the current legislation, then the legislative election can only be postponed following the decision of the President of the Russian Federation. However, a state of emergency or at least a high-alert mode has to be declared beforehand. By the way, "high-alert mode" has yet to be legally defined and introduced to the Federal Law No. 52-FZ of 30 September 1999 "On the Sanitary and Epidemiological Welfare of the Population" or some other federal legislation (if we do not count mentions of high-alert mode in Article 20.6.1 of the Code of Administrative Offences of the Russian Federation).

As for postponing elections during an ongoing election campaign, such a decision can be made by the CEC of Russia. Then again, a state of emergency or a high-alert mode has to be declared beforehand.

Question 2. Can a nationwide (federal) election be held if the epidemic situation is adverse in several regions only?

Andrei Buzin

There is no need to make "healthy" regions contingent on "sick" ones.

Olga Pokrovskaya

I think not. Otherwise, there is a risk that enclaves of "illegitimate" federal bodies of state power might form.

Yurii Bocharov

It can. Because the law actually has clear stipulations that declare an election as invalid. It all depends on the overall result and the number of confirmed balloting at certain precincts. That said, one or two regions that "did not vote" have no effect on the general resolution to declare the election valid.

Yurii Korgunyuk

It can. These several regions can hold the election later, while the legally established dates of nationwide campaign should be preserved. Post-Soviet Russia knows a few cases of elections in certain regions being held later than everywhere else in the country. For example, the 1993 election in the Republic of Tatarstan. Although in this case, the legislative election scheduled for 12 December 1993 was disrupted by the position of regional authorities and eventually took place in March 1994. The precedent was set, however.

Mariya Bainova

It can in 2 or 3 regions, but not in 10.

Boris Nadezhdin

It depends on the number (and population) of regions where a high sickness rate is projected for the election day(s). If it is just a few regions, the election can be held later (as a repeat election would have been).

Nikolai Grishin

In order to solve this issue, the legislation could be amended to constitute how the epidemic situation in a certain region justifies postponing the election.

Aleksei Elaev

The law provides for the possibility of postponing a federal election in case a high-alert mode or a state of emergency is declared throughout Russia or in at least one third of the federal subjects (29), regardless of the number of voters in those areas. At the same time, there is an exception of legislative by-election.

I believe that the law should be made more clear, tying the possibility of postponing a federal election to the number of voters in regions that will be "underrepresented" on the federal level. At the same time, it is still necessary to hold State Duma deputy (legislative) election in single-seat constituencies in epidemic-free areas, since there is nothing that could prevent their election.

Nikolai Vorobyov

Before anything else, we ought to talk about calling (or not calling) an election at the scheduled time. This issue lies at the discretion of the President of the Russian Federation (see answer to Question 1).

Speaking of cancelling (postponing, delaying) an already scheduled election to the State Duma (meaning when the campaign is on), this issued is partially addressed in Clause 2 of Article 10.1 of the Federal Law "On Basic Guarantees of Electoral Rights..." This means that in case a high-alert mode or a state of emergency has been declared in several regions, the Central Election Commission of the Russian Federation can make an autonomous decision to postpone the election throughout the Russian Federation or in one third of federal subjects.

It is therefore generally possible for the CEC of Russia to make the decision to postpone an election either in certain regions (federal subjects) or throughout the country. Naturally, such a decision can only be made if there is an active state of emergency or high-alert mode in at least 29 federal subjects of Russia, and with due regard for the actual epidemic situation in said subjects. I suppose it is also necessary to look into how this decision will affect the legitimacy of the newly elected State Duma while keeping in mind the actual number of voters in "isolated" federal subjects. If the number of voters in subjects with an adverse epidemic situation is more than a third of the total number of voters in the country, holding an election to a federal government agency seems unreasonable, and the election should be postponed in its entirety.

Question 3. How may anti-epidemic restrictions affect the election campaign? Which anti-epidemic restrictions are acceptable in the course of the campaign and which affect the very essence of elections?

Andrei Buzin

Anti-epidemic restrictions affect the election campaign as much as the authorities want them to. Campaigning over TV, radio and the Internet is safe. State control of and pressure on the media are what restricts the essence of election. This is no way connected with the epidemic situation.

Olga Pokrovskaya

The essence of elections is affected when restrictions are placed on organizing meetings of electoral participants (including public events and meetings with voters).

Boris Nadezhdin

Restrictions do not really affect the TV and the Internet – the main campaigning channels. In Russia, live meetings with voters have no significant role.

Mariya Bainova

Restrictions can be imposed on mass indoor gatherings. The essence of elections is affected when restrictions are placed on Internet campaigns and outdoor gatherings.

Yurii Korgunyuk

Anti-epidemic restrictions may make it difficult for candidates and voters to meet off-line, but the current state of Internet technology offers decent alternatives. Such restrictions do not affect the essence of elections. Another matter is that those who have the administrative resources at their disposal may use them to limit access to polling stations for certain observers. However, they managed to come up with many tricks to do it before the epidemic.

Nikolai Grishin

The COVID-19 pandemic of 2020-2021 has shown that any restriction can be controversial. It would be much more accurate to proceed from the principle that the rights of all electoral participants are equally important, and restricting any part of these rights sets a dangerous precedent that could potentially affect the electoral process held under "normal" circumstances.

Yurii Bocharov

The bulk of campaigning today is done in the media and social networking sites. The epidemic situation (and the measures against it specifically) first of all entails a restriction on mass gatherings of people. However, recent evidence suggests that only a few people and countries actually pay heed to this fact. While mass events like meetings with voters do not really affect the bigger picture in the country, it is mass protests that actually may significantly affect the opinions of voters, especially if they are widely circulated in the media. However, it is highly unlikely that the authorities will allow such circulation and coverage of protests. Therefore, elections will happen as long as the full use of the media for campaigning purposes is available.

Take the US presidential election and the epidemic situation it was held in, for example. By the time of the election, COVID-19 took the lives of 120 thousand people out of the 4.5 million infected. Did it stop anyone from campaigning, gathering meetings and rallies, though? The majority of the population simply ignored all restrictions and the authorities did not really mind, which is why the election took place.

Aleksei Elaev

Considering the spread of the Internet, the only campaigning events that affect the electoral campaign and epidemic situation are the ones involving interaction with voters, such as signature collection, outdoor and indoor meetings, door-to-door canvassing, opinion surveys, rallies, marches and demonstrations. That said, as opposed to federal elections and elections under proportional representation system where such campaigning events do not have much of an impact, municipal elections typically depend on them and them alone.

To my mind, things that have to be considered here area a specific election and the possibility of campaigning without face-to-face contact as well as law enforcement practices in epidemic conditions. Putting restrictions on campaigning activities seems foolish when there is no immediate threat to life and health of voters.

Nikolai Vorobyov

As for anti-epidemic restrictions during the election campaign, I believe they may be imposed, but they should limit neither electoral rights of citizens as a whole nor any stand-alone entitlements. By stand-alone entitlements I mean the right to campaign (even public events, meetings with voters, distribution of campaign materials, etc.), to observe the election and vote tallying processes and the right to vote itself (including voting at home). All these entitlements can be exercised without any limitations while observing all the necessary anti-epidemic measures (like wearing masks, washing hands, etc.).

Prevention of the pandemic should not be used as an excuse to impose any restrictions on conducting any electoral activities permitted by law in the course of the election campaign, like campaigning, election observation (especially that !!!) and voting. The same goes for imposing restrictions to serve anyone's interests.

At any rate, there are no legal grounds for encumbering, infringing and (or) limiting electoral rights to be found in either the amended Constitution of Russia, or the current legislation on sanitary and epidemiological surveillance, or the electoral legislation. Therefore, if an election is to be held (even during the pandemic), the existing electoral rights should be ensured in full. On the other hand, if an election is to be postponed because of the pandemic, this should be done in accordance with the law.

Question 4. What anti-epidemic restrictions are acceptable while organizing the election process? Can any restrictions that hinder election monitoring be imposed? What are the ways to assess the effectiveness of voting process control procedures established during the pandemic?

Nikolai Vorobyov

The pandemic itself should not have any negative impact on controlling and monitoring the election process.

Mariya Bainova

Restricting election observation procedures affects the election process and is unacceptable.

Boris Nadezhdin

Regular measures should apply, such as wearing masks, sanitation and social distancing. Elections should be monitored as usual while observing these very measures.

Olga Pokrovskaya

The acceptable requirement is that of wearing masks. Anything else, including restricting monitoring of the election process, is unacceptable.

Yurii Korgunyuk

It is acceptable to require voters, election commission members and observers to keep a safe distance from one another and wear masks. It is unacceptable to suspend observers from performing their duties. They can effectively be required to simply keep a safe distance and wear masks. Anything else is work of the devil.

I do not think that ways of monitoring electoral procedures during the pandemic should be in any way different from those used under regular circumstances.

Yurii Bocharov

This issue concerns many of today's legislators, including their electoral authorities, which introduce measures to protect the population based on the recommendations issued by their health ministries. For example, Israel decided to add one observer with a camera to the election commission for the entire working day. This observer is supposed to record the whole vote tallying process.

Nikolai Grishin

It would be extremely ill-advised to hold an election while violating or placing severe restrictions on electoral rules. It would undermine the necessity to comply with electoral rules and thus set a dangerous precedent.

Placing severe restrictions on election monitoring is unacceptable as it violates the basic principles of democratic elections and poses a threat to government legitimacy and political stability. If the epidemic situation is so adverse that it requires restrictions to be placed on election monitoring, it may serve as cause for postponing elections.

Aleksei Elaev

The restrictions should be determined by a specific epidemic situation, be scientifically based and offer judicial control over discretions of the corresponding election commission. They should also be compensated by certain means of technology. For example, if three people cannot drive together in the car with the ballot box, a minibus should be ordered to properly fit them all. If not all observers fit into the voting premises, this calls for more spacious voting premises, and so on. Nobody should be under any illusion that the epidemic situation is being deliberately used to undermine the credibility of electoral procedure. For example, if not all observers fit into the voting premises because of social distancing rules, either the premises should be more spacious or all activities of the election commission should be broadcasted and the broadcast made available afterwards to maintain the credibility of electoral procedure.

Andrei Buzin

There is no doubt that we should develop remote voting solutions. Besides, it is absolutely essential that society-approved public control measures should be established by law. The mechanics of remote voting should be made available to the public, and the public should be given control over (or better yet, the public should take part in) the process of remote voting.

Question 5. How would you assess the increased use of early and remote (postal, electronic) voting during the pandemic?

Yurii Bocharov

If this system actually works and helps to determine a voter's true opinion that is unaltered by the government, then it should be further developed, regardless of the pandemic. Although it is unlikely that the government will leave this process without control.

Boris Nadezhdin

Electoral fraud is committed in many regions of Russia on a regular basis and people do not put much trust into vote tallying, so traditional methods of voting and vote tallying seem the better solution.

Andrei Buzin

The current experience is inconsistent with the principle of election transparency. Unfortunately, there is no way to check whether vote tallying is done properly.

Nikolai Vorobyov

My personal assessment of the recent use of early and remote (postal, electronic) voting is negative. I believe that the CEC of Russia is to blame for not taking adequate action to ensure a free, open and fair election. The CEC of Russia does not seem interested in doing so, and voters and the public have no levers of influence in this matter.

Olga Pokrovskaya

The Saint Petersburg experience of using early voting in the 2020 Russian constitutional referendum has shown that it sets the stage for mass electoral fraud. One of the reasons is the lack of a unified standard for storing electoral documents (as well as for public control over storing said documents) in the legislation.

In theory, we ought to welcome any democratic means of expression that increase opportunities for citizens to take part in elections. However, considering the political situation in Russia and the force of its administrative resource, all such developments are very likely to be used to rig the vote.

Mariya Bainova

Turning any election into Internet voting completely is unacceptable. Postal and early voting provoke mistrust.

Voting at current location seems to be the most appropriate form of postponing the vote. Although there are attempts to rig the vote here as well, through organizing mass voting outside the voting premises, for example.

Election is a way for the people to exercise their authority, and the act of electing implies personal involvement, which ensures transparency of the procedure.

Yurii Korgunyuk

In order to expand the use of early and remote voting, it is first necessary to develop and test regulations and forms of control under regular circumstances, as was done in the US, for example. Only then can these regulations and forms be adapted for use in a pandemic. Using the pandemic as an excuse to rush the introduction of said regulations and norms (as well as using it to justify their inadequacy) is unacceptable.

Aleksei Elaev

This difficult question concerns confidence in electoral procedure under regular circumstances as well. If there is confidence, then the vote could go on for as long as two weeks using a single ballot box that is not locked for the night. If there is none, then we need to develop more transparent procedures that would also be easily understandable for voters.

For example, postal voting in Russia is doomed due to low level of confidence in Russian Post concerning delivery time. Another reason is that the use of postal services to deliver written messages is gradually becoming obsolete, while Gosuslugi (Public Services Portal), for example, is going strong and can be viewed as a potential platform for remote voting.

The most important thing here is to remember that election commissions employ people who have other, different jobs, so a prolonged multi-day vote may be demotivating for both election commission members and their employers, who will have to manage without their employees for five or six days instead of two or three. As for early voting, maybe the system should withdraw from employing precinct election commission members at large, replacing them with employees of multifunctional public services centers and automatically processed electronic ballots. In foresight, the same could apply for voting procedure in general. The highly computerized system of public administration in Russia allows for doing so, but the issue of confidence in the resulting procedure remains.

Nikolai Grishin

In many countries, wide use of remote voting during the pandemic led to the decline of confidence in election results. As a result, regardless of whether certain countries managed to find ways to ensure purity of the vote outside the voting premises, this experience is more unfortunate than not, at least for the legitimacy of elections.

The experience of elections during the pandemic did not reveal any acceptable formulas that would allow further development of remote voting, but rather highlighted the issues to be solved in this domain. The first issue is ensuring vote secrecy (the issue remains relevant even if it exists subjectively and only in the heads of certain voters who are apprehensive about their vote being made public). Another issue that was not adequately solved is the fairness of vote tallying in remote voting and preventive measures against potential fraud in tallying the votes of remote voters.

Mass spread of remote voting created specific threats to ensuring election purity that had not existed before. Above all, these threats concern splitting the electorate in two (those voting inside and outside the polling stations). Voters in these two groups find themselves in different circumstances and may become subject to distinctive methods of coercion and manipulation. Seeing how in many countries these groups tend to have different political preferences, the threat of electoral manipulation becomes even greater.

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References

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2. Shapovalov V.L. Obespecheniye izbiratelnykh prav grazhdan v usloviyakh rasprostraneniya novoi koronavirusnoi infektsii [Ensuring Electoral Rights in an Environment of the COVID-19]. – Izbiratelnoye zakonodatelstvo i praktika. 2020. No. 2. P. 22–27. (In Russ.)
3. Tyukov N.A. Organizatsiya i provedeniye vyborov v usloviyakh pandemii COVID-19 [Organizing and Holding Elections during the COVID-19 Pandemic]. – Izbiratelnoye zakonodatelstvo i praktika. 2020. No. 3. P. 34–40. (In Russ.)