Stability of legislation is one of the universally recognised international standards for free and democratic elections. It implies that significant changes to election rules should not be introduced earlier than at least a year before the start of an election campaign; ideally, this period should be even longer. Otherwise, there is always a suspicion that the rules are being manipulated in the interests of the political force currently in power.
However, it has become a tradition in Russia to change the essential provisions of the electoral legislation every year. The fact that no significant election for decades has been held under the same rules as the previous one has become the only stable characteristic of the electoral system.
This report focuses on election law changes that occurred between June 2022 and May 2023 at the federal, regional, and local levels.
Between June 2022 and May 2023, six federal laws were adopted that amended the Federal Law On Basic Guarantees of Electoral Rights and the Right to Participate in Referendums of Citizens of the Russian Federation. Four laws (Federal Laws No. 220-FZ of 28 June 2022, No. 569-FZ of 28 December 2022, No. 109-FZ of 3 April 2023, and No. 153-FZ of 28 April 2023) made only minor technical or terminological changes and we will not comment on them, but two others changed substantive provisions.
Federal Law No. 498-FZ of 5 December 2022 On Amending Certain Legislative Acts of the Russian Federation was a consequence of changes to the legislation on foreign agents. Most of its provisions are related to terminological substitutions: different groups of legal entities and individuals included in different registers were replaced by a single term, foreign agent.
Nevertheless, there is a significant novelty in this law: persons included in the register of foreign agents are prohibited from being members, voting or non-voting, of election commissions. Firstly, this is an additional restriction of the rights of such persons (please be reminded that the Constitutional Court of Russia once motivated the constitutionality of the law on foreign agents by the fact that it allegedly does not infringe upon the rights of those who are included in the register). Secondly, it is also an additional reduction of opportunities for public oversight over the conduct of elections. Notably, the Constitutional Court of Russia has pointed out that the right of citizens to participate in state governance is not exhausted by ensuring free participation in voting, but also includes the right to exercise oversight, which is in fact part of the active electoral right.
Federal Law No. 184-FZ of 29 May 2023 On Amendments to Certain Legislative Acts of the Russian Federation introduced quite a few significant changes to electoral legislation. Traditionally, such changes were introduced right before the campaigns of the single day of voting in 2023. These changes can be divided into five groups.
The first group of changes concerns elections in territories where martial law has been imposed. Thus, there is a possibility to hold elections or referendums under martial law by decision of the CEC of Russia on the basis of a proposal by the head of the region. Some other peculiarities of such elections are also provided for.
Previously, the legal regime of martial law was recognised as incompatible with elections or referendums. The reasons for this prohibition are obvious. Free expression of will is impossible without respect of human rights and, in particular, freedom of expression and freedom of the press, freedom of movement within the country, as well as freedom of assembly and association of citizens for political purposes. The Constitutional Court of Russia has repeatedly confirmed this. All these rights and freedoms may be restricted when martial law is declared: the law states that in this case military censorship may be imposed, the activities of political parties may be banned, and freedom of movement and mass events, including rallies, may be restricted.
On the other hand, severe restrictions on freedom of assembly, freedom of expression and freedom to create political groups, comparable to those imposed under martial law, have in fact been in place for many years throughout the country. In other words, the Russian authorities have effectively formalised the status quo and officially recognised their readiness to ignore their own constitutional standards.
The second group of changes concerns obstacles for public supervision of elections. Thus, the possibility of the presence at polling stations of media representatives who have concluded a service agreement with the media has been eliminated; only those working for the media under employment contracts are now considered to be media representatives. In addition, the powers of proxies are terminated simultaneously with the end of the campaign period; this means that proxies lose the right to be present at polling stations. In addition, it is envisaged to establish places for observers and media representatives in the voting premises, which will limit their ability to actually see what is happening at the polling stations. In other words, the intention is to further hinder the observation of elections by candidates and independent activists.
The third change makes it more difficult for opposition parties and candidates to campaign. In particular, it is prohibited to conduct election campaigning using information resources, access to which is restricted by a federal executive body. In fact, this novelty means the recognition of the powerlessness of the authorities to close access to resources undesirable for them; otherwise, there would be no sense in the prohibition.
The fourth change establishes the minimum amount of voluntary donations from citizens and legal entities, which may not exceed 3% of the per capita subsistence minimum for the Russian Federation as a whole; this will be just over 400 roubles in 2023. Limiting the maximum amount is understandable and justified; however, we are speaking here about limiting the minimum amount. This hinders the most democratic way of fundraising, the collection of small donations of 100-200 roubles from ordinary supporters of a party or candidate.
The fifth group of amendments concerns the rules of election management and strengthens the influence of administrative resources. Thus, it authorises establishing polling stations outside the territory of the respective constituent entity of the Russian Federation in regional elections. While this increases the possibility for some groups of citizens to vote, the oversight of such voting will be difficult, since the formation of such commissions does not provide for the participation of representatives of political parties, and it will be virtually impossible to send observers to other regions. It is also envisaged that the regional election commission may be vested with the authority to organise elections to local self-government bodies in the administrative centre of the region in question, i.e. the influence of the regional authorities on elections in the capital of the region will be strengthened. It becomes possible to allocate funds from the budget of a constituent entity of the Russian Federation and the local budget to assist in the preparation and conduct of elections, including payments to members of election commissions; in other words, the dependence of members of election commissions on the executive power acquires a legalised financial component. In addition, it is now possible to compile voter lists electronically, and this measure (which looks like a move in step with the times) also complicates observation of voting.
Against this background, the least significant novelty is the complete elimination of the possibility of absentee voting. Having practically disappeared since 2017, such voting has now been abolished altogether.
Thus, the most significant changes in the electoral legislation are aimed at:
Elections of heads of regions are held in 21 regions. In 20 of them, the previous elections were held five years ago, in 2018. In Smolenskaya Oblast, the previous elections were held in 2020.
In most regions, the main characteristics of the law on the election of governors (the municipal filter and the possibility of self-nomination) have not changed since the previous elections (see Table 1). The main exceptions are:
1) Primorsky Krai. In April 2023, the possibility of self-nomination was eliminated here, an option that had been introduced in a hurry specially for the current head of the region, Oleg Kozhemyako, less than five years earlier, ahead of the 2018 re-election. In January 2023, the characteristics of the municipal filter were also changed: although the share of signatures of all municipal heads and deputies remained the same (7%), but the required share of signatures of upper-level local self-government deputies increased significantly (from 5 to 8%). This is a more significant indicator, as upper-level signatures are much more difficult to collect.
2) Kemerovskaya Oblast. Here, the characteristics of the municipal filter remained unchanged, but in March 2023, the possibility of self-nomination was excluded.
Table 1: Basic legal characteristics of the election of heads of regions on the single day of voting on 10 September 2023
Thus, out of the regions holding elections in 2023, the possibility of self-nomination remained only in Omskaya Oblast and Moscow.
In two more regions (Moskovskaya Oblast and Nizhegorodskaya Oblast), where the settlement level was completely eliminated over the past five years, the municipal filter was reduced by one layer.
In Moskovskaya Oblast, it was previously required to collect signatures in the amount of 7 per cent of all municipal deputies and 7 per cent of upper-level municipal deputies. Now the law requires 7 per cent of all municipal deputies. Five years ago, it was required to collect at least 196 signatures, including at least 98 signatures of upper-level deputies; now it is only required to collect at least 90 signatures.
In Nizhegorodskaya Oblast, it was previously required to collect signatures in the amount of 7 per cent of all municipal deputies and 10 per cent of upper-level municipal deputies. Here, the requirement to collect 7 per cent of all municipal deputies remains. Since only upper-level deputies remained, there was actually a reduction in the requirements. Five years ago, it was necessary to collect at least 262 signatures, including at least 115 signatures of upper-level deputies; now it is only 73 signatures.
Thus, there has been a reduction in the opportunities for citizens not directly affiliated with political parties to participate in gubernatorial elections: out of four regions where self-nomination was possible in 2018, it endured only in two. The characteristics of the municipal filter remained the same in most regions, but they were naturally liberalised in two regions where the municipal reform took place, and in another one they were deliberately tightened just before the start of the campaign.
In 2018, legislative elections were held in 16 regions. All of these regions will also hold elections in 2023. Of these, 10 regions retained the same number of deputies and the same ratio of list and majoritarian parts. In the remaining six regions, these characteristics have changed. The data on the changes are presented in Table 2.
Table 2: Changes in the ratio of list and majoritarian components in the elections of deputies to regional legislatures on 10 September 2023
We see that the trend that first appeared in 2019 continues. Before that campaign, most regions maintained an equal or approximately equal ratio between list and majoritarian components. Recall that from 2003 to 2013, federal law required that the list component should make up at least half of the mandates. In 2013, the Klishas Law reduced this requirement to at least 25 per cent. However, even in 2014-2018, the parity of list and majoritarian parts was maintained.
Since 2019, many regions have started reducing the list component at the expense of the majoritarian one. At the same time, in 2022, the requirement for the mandatory use of party lists in regional elections was removed from the federal law. Yet in 2023, as well as in 2022, not a single region used this opportunity. All 16 regions under discussion use a mixed system, but six have reduced the list share: three to one-third, Kalmykia and Vladimirskaya Oblast to 37-38 per cent, and Yaroslavskaya Oblast to 26 per cent. Notably, five regions switched to this scheme from an equal ratio, while Kalmykia transitioned from a fully proportional system (in the other ten regions the ratio of list and majoritarian components is equal or almost equal).
The reduction of the list share and increase of the majoritarian share leads to two consequences. Firstly, the representation of citizens’ interests is significantly distorted. For example, in Kalmykia or Ivanovskaya Oblast, where only 10 mandates are allocated by lists, a party with 10 per cent of votes will not get more than one or two mandates out of 27-30 if it does not have strong single-seat candidates. The strongest party, which is likely to win all or almost all single-seat districts and get disproportionately large representation, benefits from it. Secondly, the increase in the number of single-seat districts led to a drastic redrawing of their boundaries, which was also often carried out at the last moment. In Kalmykia, where the redrawing of districts was adopted on 31 March, an obvious mistake was made which had to be corrected on the day of scheduling the election by changing the boundaries of the districts. The consequence of such actions is the advantage of «administrative» candidates, who, unlike the opposition, know in advance the future boundaries of the districts and, accordingly, can start working with voters earlier.
It should also be noted that the total number of deputies slightly increased in Vladimirskaya and Ivanovskaya oblasts, remained unchanged in Kalmykia, Rostovskaya and Smolenskaya oblasts, and slightly decreased in Yaroslavskaya Oblast.
The change in the ratio of list and majority mandates inevitably entails a change in the rules for dividing the lists into territorial groups.
In Kalmykia, lists were not previously divided into territorial groups. This is highly typical. The main argument in favour of splitting the lists is the need to ensure territorial representation. However, in a mixed system, such representation is ensured by the majoritarian part. Whereas in a fully proportional system with a single multi-mandate district, the only way to ensure territorial representation is to divide the list into territorial groups. However, the reverse is the case here: in a fully proportional system, most often no division is required by law (as in Kalmykia in previous cycles), while in a mixed system it was introduced.
Kalmykia has chosen one of the most rigid and inadequate options: only 10 mandates are allocated to party lists. However, the list should be divided into at least 12 regional groups, and at most into 17. The territories corresponding to the groups are rigidly tied to single-seat districts. In other words, if a party divides the list into less than 17 groups, some territories will not be covered by candidates belonging to the groups.
The central (all-regional) part of the list should include no less than one and no more than three candidates. Each territorial group should include no less than two and no more than five candidates. It is easy to calculate that the minimum number of candidates on the list is 25, which is 2.5 times more than the number of mandates distributed by lists.
It is easy to predict that the leading party will not get mandates in most of the territorial groups. For the other parties, most likely, only candidates from the centre will get mandates. Therefore, this division of the list into groups cannot ensure any territorial representation. Its purpose is quite different: to increase the influence of administrative resources on the election results. In fact, the election campaign under such a system turns into a competition of administrative resources of territorial leaders.
An even more rigid scheme is envisaged in Ivanovskaya Oblast. Here, the lists do not contain a central part (it existed in the previous law). The groups are also tied to single-seat constituencies, so the maximum number is 20, and the minimum number established by law is 15. Each group must include no less than three and no more than five candidates. Thus, the minimum number of candidates on the list turns out to be 45, which is 4.5 times the number of mandates distributed by lists.
The central part of the list was also abandoned in the spring in Ulyanovskaya Oblast, where only territorial groups are present now. At the same time, the rules of division remained soft: a group can correspond to one single-seat district or two districts bordering each other; the number of groups can range between 9 and 18. Still, the excessive requirement to include at least two candidates in a group remained.
The lack of the central part leaves the party unable to rely on one, two or three of the most prominent politicians to campaign for a list throughout the region, and those, in turn, cannot be sure that they will get mandates.
Vladimirskaya Oblast retained the previous norms that territorial groups must be consistent with single-seat districts, they cannot be merged, and the number of groups must be at least half of the number of districts. However, while previously the numbers of majority and list mandates were equal, now list mandates are 15 and majority mandates are 25. There should be at least two candidates in each territorial group and at least one candidate in the centre. Thus, there should be at least 13 groups and at least 27 candidates on the list competing for 15 mandates to be distributed.
Smolenskaya Oblast has 32 single-seat districts now, while 16 mandates are distributed by lists. This region is divided into 16 territories, which are determined by the regional election commission, i.e. each territory includes two districts. The list may consist of fewer groups (at least eight), but the groups must strictly correspond to the territories and they cannot be merged. It is explicitly specified that the list must contain at least 16 candidates.
Rostovskaya Oblast has adopted similar norms. Here, too, the number of mandates distributed in the multi-mandate district is half the number of single-seat districts, and the territories corresponding to the territorial groups into which the list is divided include two districts. Here, however, the number of groups on the list must not be less than three quarters of the number of mandates distributed in the multi-mandate district (i.e. at least 15), and there must be at least two candidates in each group and one to three candidates in the central part. Thus, there should be at least 31 candidates on the list, with 20 mandates to be distributed.
The rules are more lenient in Yaroslavskaya Oblast. Here, however, there is no central part in the lists. The groups may include two, three or four single-seat districts bordering each other. In total, there are 34 districts, and groups can be from 11 to 17. Each group includes at least one candidate, which means that in total there should be at least 11 candidates on the list, with 12 mandates distributed in the multi-mandate district.
Also, some regions have changed the methodology of distribution of seats among the lists.
In Kalmykia, a new election law was adopted in connection with the transition to a mixed system (in March 2023, i.e., contrary to the recommendation of the Venice Commission, less than a year before the elections). For some reason, it also changed the methodology of distribution of seats. Either authors lacked competence, or they deliberately decided to confuse the law enforcer.
Article 43.1 of the previous law stated: «Each list of candidates admitted to the distribution of mandates shall be given one deputy mandate each. The remaining deputy mandates shall be distributed among the lists of candidates in accordance with the procedure defined in part 2 of this article». Part 2 referred to dividing the number of votes received by a list by a number of divisors starting from 2. We call this the Tyumen method, which in most cases is indistinguishable from the D’Hondt method. In general, the methodology provided for in the previous law was clear and consistent.
The new law immediately enshrines in the relevant article (65) the division by a number of divisors starting from 2. A reservation is contained in part 6 of article 64, and it does not sound quite definite: «Each republican list of candidates admitted in accordance with parts 3 to 5 of this article to the distribution of deputy mandates shall be allocated at least one deputy mandate. The remaining deputy mandates shall be distributed among the lists of candidates admitted to the distribution of mandates in accordance with the methodology set out in Article 65 of this law.» If, as in the previous law, it had been written: «each list… shall be given one deputy mandate», it would have been clear and understandable. On the other hand, the wording «shall be distributed» is open to interpretations. It could be interpreted as follows: first, one mandate is given to all lists admitted to the distribution of mandates, and the rest are distributed according to the methodology of Article 65 (here we should imagine that if four lists passed to the Khural, only six mandates will be distributed according to the methodology, and if there were five lists, only five mandates will be distributed). However, there is no hint in Article 65 that not all mandates are distributed on its basis. For example, Part 3 states: «A quotient whose serial number is equal to the number of deputy mandates distributed in the republican electoral district is an electoral quota, while the number of quotients equal to it or exceeding it, which each republican list of candidates admitted to the distribution of deputy mandates has, is the number of deputy mandates received by the corresponding republican list of candidates». Thus, Part 6 of Article 64 clearly contradicts Part 3 of Article 65. Although Part 3 of Article 64 is consistent with the federal law and therefore should take precedence, it is foreseeable that the conflict of law norms will be used to distribute mandates in favour of The United Russia.
In Ivanovskaya Oblast, the law previously provided for the distribution of mandates using the Imperiali method, most often criticised because it can significantly distort representation. Now the Tyumen method is written into the law. Apparently, the legislators have realised that when only 10 mandates are distributed, the Imperiali method most often does not give the leader party the expected advantages.
Vladimirskaya, Smolenskaya and Yaroslavskaya oblasts retained the Tyumen method.
In Rostovskaya Oblast, the method of Imperiali was retained. In case there remain candidate lists admitted to participate in the distribution of deputy mandates that did not receive deputy mandates, a correction is provided: «the number of deputy mandates received by the first and subsequent lists of candidates that received more than one deputy mandate is reduced by one accordingly, and the vacated mandates are transferred one by one to the candidate lists admitted to participate in the distribution of deputy mandates that did not receive deputy mandates. If two or more lists of candidates received an equal number of deputy mandates, the number of deputy mandates received by the list of candidates for which fewer votes were cast shall be reduced first».
Therefore, six of the 16 regions where elections of regional deputies were held in 2018 and are being held in 2023 have significantly changed the electoral system: the share of majoritarian mandates was increased and the share of mandates distributed among party lists was reduced, whereas the slicing of districts was changed almost at the last moment. Two regions abolished the central parts of the lists. These changes result in additional advantages for the leading party and increase the impact of administrative resources on the election results. In fact, the election campaign in many regions will turn into a competition of administrative resources of territorial leaders.
Special mention should be made of Kalmykia, where lawmakers made at least two grave mistakes in introducing changes to the electoral system during the spring, consciously or not. This has already resulted in some candidates not knowing the boundaries of their districts until the first day of the campaign. So far, it is hard to predict the consequences awaiting election contestants at the polls.
Among the regional centres where elections of representative bodies will be held this year, 11 cities held previous elections in 2018, and Magas in 2019. In most cases, the previous scheme of electing deputies was preserved (see Table 3).
Table 3: Ratio of list and majoritarian components in the elections of deputies of representative bodies of the administrative centres of the regions
Changes occurred only in three regional capitals. In Maikop, the change was minimal: the same 30 deputies remained, but the number of list mandates increased from 20 to 21 and the number of majoritarian mandates decreased from 10 to 9.
In two regional centres, on the contrary, the majoritarian part increased significantly at the expense of the list component. In Veliky Novgorod five years ago, the ratio was equal (15:15). Then the CPRF won the election, and representatives of five parties, including Yabloko, were elected deputies. Now 10 deputies will be elected by lists, and 20 in single-seat districts. The all-municipal part of the list is excluded, whereas two options are provided for the formation of territorial groups in municipalities with a population of more than 100 thousand people (the City of Novgorod being the only one in the Novgorod Region): the number of territorial groups, into which the party list is divided, coincides with single-seat districts; or the election commission will determine the list of territories for the formation of territorial groups 20 days before the elections.
The regional authorities implemented exactly the same scheme in the run-up to the elections to the Novgorod Regional Duma in 2021. Then, too, the region-wide part of the party lists was eliminated and the number of single-seat candidates was increased. As a result, The United Russia received only 29.5 per cent of the vote, but at the expense of single-seat candidates it won 72 per cent of the seats in the regional legislature. The CPRF, which came second with 19.8 per cent of the vote, won only two of the 32 seats.
A similar change occurred in Yekaterinburg: instead of an equal ratio (18:18), there are now 10 on lists and 25 in single-seat districts (the city Duma is reduced by one seat). The corresponding amendments to the city charter were introduced at the City Duma session on 11 April. The proposal was supported by 27 deputies, 4 were against, one abstained. The initiator of the reform was the mayor’s office, which is supposed to be empowered to have the maximum number of loyal deputies elected at the September elections. The intrigue with the decision was kept until the last moment, because some deputies, who eventually supported the proposal, hesitated to the end, while 24 votes were needed to make a decision.
Belgorod and Tyumen, where such electoral systems have been in place since the previous elections in 2018, are also marked by an advantage of the majoritarian part over the proportional one. The fully proportional system is preserved in Magas, where only about three thousand voters are registered.
Thus, the change in electoral systems also affected municipal elections, although to a lesser extent than regional-level representative bodies. However, even here the changes were clearly conditioned solely by the political interests of the authorities who wanted to strengthen their positions in problematic cities by distorting representation.
Separate mention should be made of the cancellation of the direct election of the mayor of Tomsk, which was to be held in 2023. The previous election took place back in 2018 and Ivan Klyayn won them, but already in November 2020, a criminal case was brought against him and he was temporarily suspended from office. He was finally deprived of his powers after the court conviction came into force on 29 July 2022. In autumn, the Tomsk City Duma was supposed to call new elections, which would have been held in early 2023, but a few days before that, regional deputies changed the procedure for electing the mayor of Tomsk from a direct election to an appointment by deputies. However, as a result, the mayor of the city has not yet been determined; the competition for the mayor’s position, scheduled for the spring of 2023, has failed to take place. A new one will be held only in September. Deputies of the City Duma now demand the return of direct election of the mayor.
Authors of the report: