Legal and political features of the 11 September 2022 elections in Russia: restriction of freedoms and further departization through special operation

Introduction

The 11 September 2022 regional elections in Russia will be taking place in an unprecedented situation: for the first time, an election campaign is taking place amid the continuing war against Ukraine. This has led to a number of special regulations being issued that have increased restrictions on voting rights, freedom of expression, and even freedom of movement. Some of the regions where the most significant election campaigns are taking place either directly border the territory of Ukraine (Kursk region) or are affected by restrictions that have been imposed (Krasnodar region, with the Sochi airport being the only one operating in the region since late February 2022).

According to the Russian CEC, as of 6 July 2022 a total of 4,686 elections are scheduled for 11 September. The largest of these are the direct elections of the heads of 14 regions, six regional parliaments, and 12 city councils of regional administrative centres.

Formally, the most important elections are for regional heads of states, but they are in fact the most predictable because of the "municipal filter" system that already limits competition at the nomination and registration stages.

Municipal elections are expected to be the most noteworthy ones taking place in 2022. Twelve city councils will be elected in the administrative centres of the regions, seven of which (Gorno-Altaisk, Barnaul, Vladivostok, Kirov, Omsk, Tver, Yaroslavl) have strong protest moods and/or strong opposition organizations. The most challenging situation for authorities will be in Vladivostok and Kirov, where the opposition got its votes during the September 2021 elections to the State Duma and local legislative assemblies. Barnaul, Omsk and Yaroslavl also showed a sharp increase in protests in 2021.

A separate group of elections in 2022 are the municipal elections in Moscow: Moscow municipal deputies have very little power, but these elections are important symbolically to demonstrate the continuing, strengthening or weakening influence of local opposition activists on city life.

Key Findings

1.   The main challenge for the 2022 elections, in terms of ensuring conditions for the free expression of will by the voters, is the large-scale attack being mounted on the remnants of freedom of expression in Russia.

In fact, most Russian citizens have currently been deprived of the opportunity to receive alternative information about the crucial issues of political, socio-economic, cultural and public life in the country and to freely express their opinions about same.

Two levels of implementation: technological and substantive.

Technologically, almost all media outlets capable of broadcasting a point of view different from the official line, as well as the largest non-government-controlled social networks (except for YouTube and messengers) have been blocked in Russia.

Substantively, restrictions on the freedom of expression are achieved by repressions against those who voice a position different from the official one, which cannot but affect the conduct of campaigning by candidates who are as restricted as possible in their criticism of the actions of the authorities. The restriction on public rallies that has been in place since the start of the Coronavirus pandemic and which has remained in place even after Rospotrebnadzor lifted all other pandemic related restrictions, seriously impedes the exercise of citizens' rights and freedoms and thus hinders the free formation of the will of the electorate.

As a result, it has already become clear that it is impossible to speak of a free expression of the will of the citizens during the 2022 election campaign.

2.   After the unsuccessful regional elections of September 2021, the large-scale departization at the regional and local levels that had already begun several years previously was further expanded: the requirement to distribute at least 25% of the seats in regional parliaments through a proportional system was removed.

• In Udmurtia, the proportion of deputies on party lists dropped to a third (20 out of 60 deputies),
• in Krasnodar Krai - up to 25 out of 70,
•  in the Saratov region - up to 10 out of 40,
• in the Sakhalin region – up to 10 out of 28.

Thus, even in regions that are considered to be ‘safe’ for the authorities to remain in control, the share of seats for party lists was reduced: regional authorities continue to reduce the electoral and political capacity of the opposition even when it expresses loyalty.

The situation is even more telling in the elections of the city councils of regional capitals: party lists were completely cancelled in Gorno-Altaisk, Vladivostok, Omsk, Tver, Yaroslavl; in Petropavlovsk-Kamchatsky 10 out of 30 seats were left open for parties, and in Pskov -10 out of 25.

Potentially, the abolition of list-based elections could lead to a monopolisation of regional and city parliaments by the ruling party and a reduction of ‘parliamentary privilege' holders, i.e. by making it more difficult for opposition candidates to register.

3.   The principle of openness and transparency in the work of electoral commissions has been increasingly violated.

A serious blow to their ability to oversee elections - not only during the voting process, but also during the processes of candidate registration and campaign regulation - was the abolition of the possibility of appointing non-voting election commission members to territorial, district and precinct election commissions.

In addition, members of the CEC and the Electoral Commission of the constituent entity of the Russian Federation with consultative voting rights were deprived of the opportunity to participate in meetings of lower-level commissions and to familiarise themselves with their documents.

The status of members of election commissions with advisory vote has been in effect in Russia since 1993 and has proved its effectiveness. That same logic is behind the continued increase in the complexity of media accreditation and the restriction of citizens' access to video broadcasts from election commissions.

4.   Russian citizens being denied their right to be elected have escalated.

As an example, the period of deprivation of passive suffrage for citizens convicted of extremist crimes was increased to five years after the removal or expiration of a criminal record. This will further increase the number of people deprived of passive suffrage on numerous grounds, which, according to Golos election monitoring experts, has already reached 10-11 million.

5.   Continuation of negative traditions of artificially shortening election campaign periods.

This particularly adversely affects candidates and parties who have to collect signatures in support of their nominations.

Another unfortunate tradition is the manipulation of electoral legislation just before the start of an election campaign period - this provides an advantage to the ruling party, which, knowing in advance about the coming changes, can begin to prepare for them before its rivals do.

In 18 of 32 cases, the latest version of regional laws was adopted less than 30 days before the start of the election campaign. Lawmakers in the Vladimir, Omsk, and Sakhalin regions were particularly masterful in this respect, passing the latest version of the law less than a week before the start of the campaign. Many of the changes made to regional laws in the last months before the start of the election campaign were not related to the need to bring them into conformity with federal laws, but, rather, concerned important parameters of the electoral system which the regions set themselves.

In 2022, the attack on both active and passive suffrage continues. The state, whose duty it is to ensure guarantees for the free formation and expression of the will of its citizens, is taking more and more steps to make this as difficult as possible.

1.1 Radical restrictions on freedom of expression

On 14 July 2022, the Russian president signed several laws that will have a significant impact on the freedom of information and expression.

Amendments to the laws "On Mass Media", "On Information, Information Technologies and Information Protection" and "On Measures to Influence Persons Involved in Violation of Fundamental Human Rights and Freedoms, Rights and Freedoms of Citizens of the Russian Federation" have come into force.

The Russian Prosecutor General's Office has now been given the power to order the suspension of media outlets or to invalidate their registration, as well as to terminate their broadcasting licences; to demand that websites be blocked permanently; and to ban foreign media if the state in which they are registered has imposed a ban or restrictions on Russian media.

On the same day, amendments to the Criminal Code were signed, under which citizens will now be punished for ‘public calls for activities directed against the security of the Russian Federation, or for obstructing the authorities and their officials from exercising their powers to ensure the security of the Russian Federation’. In addition, Article 275.1 of the Criminal Code now provides for punishment for the cooperation on a confidential basis with a foreign state, international or foreign organisation.

As of 15 July 2022, the Russian Ministry of Justice included 168 individuals and legal entities in the Register of Foreign Mass Media Performing the Functions of a Foreign Agent, of which 50 were added to the list after 24 February 2022.

Some media outlets have been placed on the List of Foreign and International Non-Governmental Organisations Recognised as Undesirable in the Russian Federation - a total of 60 organisations, for interaction with which Russian citizens could face criminal liability.

Several media outlets and structures that support journalists were included among them. In particular, on 15 July 2022, the Russian Prosecutor General's Office recognized Bellingcat and The Insider as undesirable publications.

According to Roscomsvoboda, as of 11 July 2022, ‘the number of websites blocked for military censorship reasons had reached 5,300’.

The websites of human rights organisations have been blocked: Amnesty International. Eurasia, the civil rights project “For Human Rights”, Human Rights Watch (HRW), and the website of the Human Rights Center “MEMORIAL”. The website of the Golos movement and even the website of the Altai regional branch of the “Yabloko” party have been blocked.

Additionally, Western social networks such as Twitter, as well as Facebook and Instagram, owned by the American publicly traded company, Meta, and therefore considered by the ruling government to be extremist, have all been blocked.

Thus, almost all media outlets capable of broadcasting a point of view different from the official one and the largest non-government-controlled social networks, apart from YouTube and messengers, have now been blocked in Russia.

In fact, at the moment, most Russian citizens have been deprived of the opportunity to receive alternative information about the most important issues of political, socio-economic, cultural and public life in the country.

Only those who sufficiently master VPN technology still have that option. According to media reports in May 2022, 24 million out of 145 million Russians, or less than 17% of the country's population, had used blockchain circumvention technology.

It is likely that this proportion is very unevenly distributed among different ages - it is higher among young users, including those under 18 and without the right to vote.

In addition to blocking information channels, it is not possible to express certain views without risking state repression, which has an impact on campaigning by candidates who have been as restricted as possible in their criticism of the authorities.

As a result, it has already become clear that it is impossible to speak of a free expression of the will of Russia’s citizens in the 2022 election campaign. 

1.2 Large-scale departization at the regional level

The compulsory election of a part of the deputies to regional parliaments on the basis of party lists in due course significantly increased their influence in the regions and has enabled them to have their own factions in regional parliaments everywhere. Regional authorities can now not only reduce the proportion of party-list deputies, but can also ‘nullify’ it altogether.

This will have several consequences.

Firstly, the majoritarian system significantly distorts representation. The leading party in Russia has a 100 percent chance of winning 100 percent of the seats, even if its support level is at 30-35 per cent.

Secondly, it will become much more difficult for parties to obtain the so-called 'parliamentary privilege', i.e. the right to nominate candidates without collecting signatures. In an environment where it is almost impossible for candidates to register by collecting signatures, it was the concession that made parties attractive to many politicians. However, now the importance of parties will be reduced at all levels - federal, regional and local. For example, in order to have an advantage in nominating candidates for the State Duma elections, a party must win more than 3% of the vote in the previous election or get mandates on a list in at least one regional parliament.

In the 2021 elections, 14 parties had the ‘parliamentary privilege’ (in the end they were the only ones to reach the ballot paper). At the moment, only 11 parties are guaranteed the exemption for the next Duma elections: five parliamentary parties (United Russia, CPRF, LDPR, Just Russia - For Truth and New People) and six parties which formed their factions in regional assemblies this September (Party of Pensioners, Communists of Russia, Yabloko, Rodina, The Greens and the Party of Direct Democracy).

As a result, the opportunity for politicians to stand for office without collecting signatures will diminish and there will be fewer entry points to this particular ‘market’.

1.3 Direct changes in the electoral law

The important changes introduced by Federal Law No. 60-FZ of 14 March 2022 can be divided into ten groups.

1) Liquidation of municipal electoral commissions. Their powers are vested in the respective territorial electoral commissions and may also be assigned to precinct electoral commissions operating within the boundaries of a single municipality. On the whole, the new measure is in line with the trend towards the nationalisation of local government. The new measure will enter into force on 1 January 2023.

2) Abolishment of the possibility of appointing non-voting election commission members to territorial, district and precinct election commissions. Such status is retained only in the CEC and the electoral commissions of the constituent entities of the Russian Federation.

Instead, observers can be appointed to district and territorial commissions (observers could be appointed to precinct commissions before, and to territorial commissions only during early voting), but they can be present in these commissions only on voting and tabulation days, and their powers are quite different from those of non-voting members. In particular, they do not have the right to participate in the deliberations of the commissions and to verify that votes are counted correctly.

This deals a serious blow to the ability to monitor the activities of mid-level and lower-level election commissions.  The institution of non-voting members of election commissions has been in place in Russia since 1993 and has been an effective means of such control.

3) The requirement to distribute at least 25% of mandates in regional parliaments through a proportional system was removed. It had prevented the monopolisation of representation in regional parliaments by a single party, which is often the case under the majoritarian system. This may lead to a monopolisation of regional parliaments by the ruling party and a reduction in the holders of ‘parliamentary privileges’ at all levels of elections, i.e. complicate the registration process for opposition candidates.

4) A new article on remote electronic voting.

On the one hand, the appearance of a separate article could be welcomed. However, firstly, the article is insufficiently detailed and does not contain real guarantees of electoral rights for remote electronic voting.

Secondly, it is still technically insufficiently elaborated upon, with practice accompanied by reasonable suspicions of fraud, and its widespread use in elections is premature.

5) The period of deprivation of passive suffrage for citizens convicted of extremist crimes has been increased to five years from the date of expiry or discharge of a criminal record (previously it ended with the expiry or discharge of the criminal record). These innovations continue the trend in recent years of restrictions on passive suffrage.

7) Restrictions on the formation of polling stations have changed. In cities of federal significance, centres of constituent entities of the Russian Federation, and urban districts with a number of voters exceeding 500,000, the formation of polling stations with a number of voters exceeding three thousand is permitted. At the same time, the previous limit of 3,000 voters resulted in some of the largest polling stations in Russia.

8) A new obligation was introduced for candidates and parties if their campaign material uses a statement made by an individual included in one of the ‘foreign agents’ registers. The statement must now be preceded by information that it is a ‘foreign agent’s’ statement. The trend here demonstrates a continuation of the restriction of rights of citizens designated as ‘foreign agents’ and who are, in fact, opposition-minded public figures and experts.

9) It established an obligation by candidates and electoral associations to submit to relevant election commissions copies of campaign materials to be placed by television and radio broadcasting organizations or in periodicals. This increases the ability of election commissions to prevent opposition parties and candidates from campaigning.

10) It has been clarified that in case of failure to submit any of the documents stipulated by law for registration, the relevant electoral commission shall decide to recognise the respective candidates as having lost their status as candidates. The new measure is correct in principle. Although it does not affect the implementation of citizens' electoral rights, it facilitates expert analyses of the processes of nomination and registration of candidates.

Overall, most of the innovations continue the trend of recent years of restrictions on citizens' voting rights, a reduced public scrutiny of elections and less opportunity for the opposition to effectively participate in elections.