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16 May, 2011  ▪  Andriy Skumin

Winning the Race at the Start

The draft law on elections published for the purpose of discussion reveals the ruling party’s strategy for the 2012 parliamentary election

Today the victory of the Party of Regions in the 2012 parliamentary election is as expected as never before. At least, this is the conclusion one reaches by comparing forecasts about how election legislation is going to be “improved” after the local elections and the new draft law on parliamentary elections prepared by the Justice Ministry. After the 2010 election campaign The Ukrainian Week forecast that the rules tested by the Viktor Yanukovych team during the local elections would be copied in the national action. The Regionals did not limit themselves to copying only, but the proposed innovations are no surprise, either.

NORMS AND EXPECTATIONS

The main trend evident in the new draft law is that the ruling party has set course to monopolize the Verkhovna Rada. Several factors will be employed such as keeping blocs out of the election process and raising the threshold from 3% to 5%.

If blocs are indeed banned from participating in elections as separate units, this will deliver a blow not only against the opposition but also against the PR’s partners in the parliamentary majority. For example, the five-percent threshold casts doubt on the Communist Party's future. Opinion polls show that its popularity rating is 3-4%. It could save the situation by teaming up with other political forces and forging a left-wing bloc involving the Communist Party, Natalia Vitrenko’s Progressive Socialist Party and other parties of “Soviet patriots.” However, the Party of Regions is denying the Communist Party the opportunity to make this move. Consequently, if the communists vote for a higher threshold, it will mean that they have been given guarantees that the election results will be rigged in their favor.

The “regional team” would play the role of a funeral team for Volodymyr Lytvyn’s political career. His political force was ready to see blocs being barred from elections. For over a year now the Lytvyn Bloc has been rebranding itself to make his People’s Party more recognizable. However, the party is not prepared to handle a higher threshold and will not be able to block the passage of the draft law, because their leader may have to stand before criminal court in the Georgiy Gongandze case. Sources close to the investigation say that an abuse of power case against him has already been prepared "just in case".

The opposition is also in for some hard times. Even though it is very polarized, the threat of losing parliament seats would force it to unite, but the Party of Regions is set to deprive the opposition of this ability. Five percent is a critical level of support for most opposition parties. Only Yulia Tymoshenko’s Fatherland party has a real chance of making it to parliament. The Front of Changes, Svoboda and others will have a future in the parliament only if they succeed in topping out in terms of voter support.

The government can pull the rug from under them by declaring the elections invalid in districts that yield a high vote count for them or by purposefully underreporting the number of ballots cast for them. For the ruling party, this will solve the problem. Technologically, this can be accomplished fairly easily. One way to do it is for a territorial election commission controlled by the Party of Regions to pass a decision on the Election Day to suspend members of certain district commissions representing the opposition (Part 2, Article 27). Alternatively, district commissions may pass decisions at their ballot-counting meetings to have official observers and other persons removed from the premises citing illegal interference with their activities (Part 5, Article 34). Finally, district commission members may check another checkbox on ballots cast for the opposition parties, thus making them invalid.

Small opposition parties, such as Our Ukraine, the Ukrainian People's Party, the People's Movement of Ukraine, Reforms and Order, have dismal prospects. Under the new election law, they do not stand a chance of making it to parliament at all. This essentially means that for the first time since independence the legislative process will lose an entire ideological segment: one-time Rukh members, excepting several MPs, will find themselves outside the Verkhovna Rada. It appears that the Party of Regions views this as something positive. But this is a shortsighted view, because “national democrats” in parliament are a fairly convenient means of legitimizing many of Yanukovych’s initiatives in the eyes of patriotic voters.

MAJORITY SYSTEM REVIVED

Another extremely powerful factor that will boost the Party of Region’s standing in parliament will the introduction of a mixed, representation-majority electoral system. List-based voting has always been a mechanism to represent in the Verkhovna Rada the ideological preferences of certain electoral groups. The local elections have shown that the introduction of the majority system destroys this representation, because electing a delegate under this system is not a purely ideological choice. Voters are influenced by bribes, images, administrative resources, promises of material benefits, and so on. Considering the incomparably greater resources (material, financial and administrative) of the ruling party, the Party of Regions will be able to post serious competition to opposition candidates not only in Central Ukraine but also in Western Ukraine in single member constituencies. Take, for example, the 2010 election to the Lviv Regional Council. Under the representation system, Svoboda had 25 seats, the Front of Changes 11, Our Ukraine 7, the Party of Regions 6, the People’s Movement 4, and UDAR 3. The Front of Changes and the People’s Movement got one more seat apiece after the remainder was divided. This way, the Party of Regions won a mere six mandates and the UDAR party, which is loyal to them in Lviv oblast, added another three. In contrast, in single member constituencies the situation was quite different: Svodoba had 16 seats, the Front of Changes 6, Anatolii Kinakh’s Party of Industrialists and Entrepreneurs (PPPU) 6, Ukrainian People’s Party 5, Serhii Tihipko’s Strong Ukraine 4, the Party of Regions 3, Lytvyn’s People’s Party 3, the People’s Movement 3, Renaissance 3, and the Social Democratic Party (USDP, now controlled by the Party of Regions) - 2. In other words, 21 of 58 such mandates went to pro-government parties (PR, PPPU, A Strong Ukraine, Renaissance and USDP).

The draft law prepared by the Ministry of Justice does not contain any innovations in the way election commissions are formed. Just like in the previous redaction, representatives of parliamentary factions become mandatory members of the territorial commissions, while those of non-parliamentarian parties are selected by lottery. This will also help the Party of Regions secure control over the district election commissions. The new draft law also keeps intact the mechanism of warnings and canceling candidate registration.

To put it in the language of politics, the parliamentary election campaign has already kicked off in Ukraine. The Party of Regions has taken the first step toward victory by using its administrative resource, the Justice Ministry. If the opposition is passive today, it will be easily outmaneuvered during the election.

An alternative: the German electoral system as an example

One German citizen has two votes. The German electoral system combines representation of parties and the connection of MPs with voters.

The system of elections to the German Bundestag is considered a classic example of the mixed system in which half of the mandates are won in single member constituencies, while the other half are distributed among parties in proportion to the number of ballots cast for them.

The German system is geared toward solving most problems that we run into as we attempt to introduce a mixed system. For example, MPs maintain their connection to voters, while the party receives the total number of votes in proportion to the number of ballots cast for it in the election. MPs elected in single member constituencies are loyal to their factions and do not look to defect. Regional circumstances are taken into account, and even small parties have a chance of being represented in parliament.

Germans described their system as personalized representation (personalisiertes Verhältniswahlrecht), which reflects its formal organization.

Elections to the Bundestag take place in a four-year cycle unless snap elections are announced.

All of 598 German MPs are elected based on the representation system and party lists, but the personal composition of one half of the Parliament (299 MPs) is determined by voters. Every voter casts two ballots in an election: one (Erststimme) for a candidate in a particular single member constituency and the other one (Zweitstimme) for the party list.

The number of seats each party gets is proportional to the number of ballots cast for it so that the percentage of votes is equal to the share of seats in parliament. This quota is first filled with winners in single member constituencies, while the rest is distributed among MPs elected from 16 regional lists. (For each of the 16 federal lands the parties have separate lists, and each land has a certain share of mandates in proportion to the population size.)

For example, a political force gets 30% of “second ballots” for its list and wins in 50 single member constituencies. This means that it can claim 30% of the total number of Parliament seats (179). Of this number, 50 go to winners in single member constituencies, while the other 129 are distributed among MPs on 16 regional lists.

If a party wins more seats in single member constituencies than it would be entitled under the proportional distribution, these extra mandates (Überhangmandate) are added to the general number of MPs.

For example, if a party posts 20% and would have 119 seats in the Bundestag, but it has 130 victories in single-member constituencies, it will keep all of 130 seats. The entire Parliament composition is increased by 11 seats, and in this particular convocation the Bundestag will have 609, rather than 598, MPs.

However, in compliance with a decision of the Federal Constitutional Court, this practice will have to be discontinued starting from 2011 as one that distorts the proportional character of representation.


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