New Ukrainian election code: modeling elections to the Kharkiv city council

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Kharkiv National University V.N. Karazin

New Ukrainian election code: modeling elections to the Kharkiv city council

Avksentyev A.A., Senior Lecturer

at the Department of Political Science

Gnatenko P.G., PhD student

at the Department of Political Science

Kharkiv, Ukraine

The new Ukrainian Electoral Code, which entered into force on January 1, 2020, is analyzed. Emphasis is placed on the limited implementation of the open list concept within the code. The main innovations of the code in relation to the previous legislation are considered. The «open» and «closed» levels of the electoral system are compared. Based on the results of the 2019 parliamentary elections, the theoretical composition of the Kharkiv City Council and the procedure of how the polling stations will be distributed (when translating the preliminary results of passing parties into future local elections) are simulated.

Emphasis is placed on the illustrative rather than the predictive aspect of relevant modeling. Based on the modeling of the Kharkiv City Council, it is pointed out that for parties on the verge of a passing barrier that go to councils with low results, in fact will work a closed list system with minimal voter influence on the personal distribution of seats.

It indicates that there are two major powerful constraints on the open list system under current legislation -- such as the distribution of mandates among single city/oblast party lists, as well as a «personal vote threshold» of 25% of the «electoral quota» (the sum of all votes cast for a “pass-through” party is divided by the number of council seats). Emphasis is placed on the need to change the electoral strategies of candidates compared to previous local elections, where, under the new legislation, such typical strategies as the choice of a favorable party district and the “identification effect ” don t guarantee a favourable result.

Keywords: election code, local elections, electoral system, open electoral lists, closed electoral lists, modeling of election results.

Новий виборчий кодекс України: моделювання виборів до Харківської міської ради

Авксентьєв А. О., старший викладач кафедри політології, Харківський національний університет імені В. Н. Каразіна (Харків, Україна),

Гнатенко П. Г., аспірант кафедри політології, Харківський національний університет імені В.Н. Каразіна (Харків, Україна)

Аналізується новий Виборчий кодекс України, що набув чинності з 1 січня 2020 року. Акцентується увага на обмеженій реалізації концепції відкритих списків в рамках вказаного кодексу. Розглядаються основні нововведення кодексу відносно попереднього законодавства. Порівнюються «відкритий» та «закритий» рівні виборчої системи.

На основі результатів парламентських виборів 2019 року моделюється теоретичний склад Харківської міської ради та процедура того, яким саме чином будуть розподілятися виборчі місця (при трансляції попередніх результатів прохідних партій на майбутні місцеві вибори). Акцентується увага на ілюстративному, а не прогнозуючому аспекті відповідного моделювання.

На основі моделювання складу харківської міськради вказується на те, що для партій на межі прохідного бар'єру, котрі проходять до рад з незначними результатами, де-факто буде працювати система закритих списків з мінімальним впливом виборців на персональний розподіл мандатів. Вказується на наявність двох основних потужних стримувачів системи відкритих списків в рамках чинного законодавства -- таких як розподіл мандатів серед єдиних загальноміських/обласних списків партій, а також «поріг персональних голосів», що складає 25% від «виборчої квоти» (сума всіх голосів, поданих за «прохідні» партії, поділена на кількість мандатів ради).

Акцентується увага на необхідності зміни виборчих стратегій кандидатів у порівнянні з попередніми місцевими виборами, де в умовах нового законодавства не гарантують обрання такі типові стратегії, як вибір сприятливого для партії округу, а також «ефект ототожнення».

Ключові слова: виборчий кодекс, місцеві вибори, виборча система, відкриті виборчі списки, закриті виборчі списки, моделювання результатів виборів.

To paraphrase a well-known saying, you can endlessly look at three things: how the fire burns, how the water flows, and how the Ukrainian legislation on elections is rewritten on the eve of the elections themselves.

On January 1, 2020, the long-suffering Electoral Code entered into force, a priori euphoric attitude towards which for many representatives of civil society overshadowed the essence of the document in all its editions.

Meanwhile, the text of the Code itself has undergone significant changes several times over the past six months.

Moreover, the version of the document adopted by the parliament and signed by the president can hardly be considered a constant for future elections - after the administrative-territorial reform, it will definitely be necessary to introduce technical amendments, along with which further substantial changes can be adopted.

In the media, articles on the adopted Code appeared with headlines on “the end of the majoritarian vote” and focused on innovations for the elections to the Verkhovna Rada, while the cardinal change in the system for the upcoming local elections in 2020 was not dealt with in detail.

So, the main positions of the new Code are the following:

- According to the Code, parties submit a single regional / city list with a fixed sequence of candidates, simultaneously assigning each candidate to one of the N multi-member districts - thus, the party forms N district lists within a single regional / city.

- The number of multi-member districts is equal to the nearest lower integer from dividing the size of the council (mandate) by 10 (± 2 deviation from the resulting quotient is allowed) - for the Kharkiv Regional Council it is 12 ± 2, for the city council it is 8 ± 2.

- For each five (places from 1st to 5th, from 6th to 10th, etc.) of all lists, a 40% gender quota is provided.

- Self-nomination is not allowed.

- The system is positioned as a model with “open lists”: the voter in the ballot notes the party whose district list he supports, and can also enter the number of a specific candidate from this list, which he supports (optional).

- Parties with more than 5% of the vote in the entire region / city are allowed to distribute mandates.

- For the distribution of mandates, an “electoral quota” is calculated -- the number of votes required getting one mandate -- it is equal to the sum of all votes cast “for” parties, which overcome the threshold, divided by the number of council mandates.

- At the first stage, mandates are distributed among district party lists. For each district list, the number of received mandates is calculated as the quotient of dividing all the votes cast by the district list by the electoral quota. Moreover, all rounding is performed towards the nearest smallest integer. For the personal distribution of mandates within the framework of district lists, at this stage the open lists mechanism operates (with some nuances, which are discussed in the next subsection).

- At the second stage, all “residual votes” (appearing at each “passing party” due to rounding towards a smaller integer at the first stage) are distributed already within the framework of a single regional / city list in the format of “closed lists” (the personal order is fixed by party at the stage of nomination of candidates, the voters' votes have no affect here).

- The law provides a majoritarian system with multi-member districts (from 2 to 4 mandates in the district) for the “lower” level of elections in rural, township, city (up to 90 thousand people) and district councils. It is such a model in the already mentioned Concept that is proposed for all levels of local elections. The general algorithm of this system, which is likely to be used for most UTCs (united territorial communities), is presented below.

- The territory is divided into multi-member districts so that the approximate number of constituencies is equal to the whole quotient of dividing the number of council mandates by 3 (that is, three-mandate constituencies should be created baseline), the permissible deviation is 1 constituency.

- At the same time, deviations in the number of voters in constituencies cannot be more than ± 15% of the average (the average is calculated as the quotient of dividing all voters by the number of constituencies).

- Self-nomination is allowed.

- Candidates are also nominated by parties, and in each constituency they can nominate several candidates (from 1 to M, where M is the number of mandates distributed in the constituency). For this level of councils, the law provides a 30% gender quota in party candidate lists.

- The voter has only one vote, which he or she casts for any of the candidates running in his constituency. The winners are considered M (the number of constituency mandates) of the candidates with the most votes (the first three places will be the base for passing in each constituency).

As for the size of the councils, the authors of the latest edition of the Code took the current “line” as a basis, abandoning plans to reduce the deputy corps.

Accordingly, 120 mandates are provided for the Kharkiv regional council, 84 mandates are for the city council, and 34 mandates are for other cities of regional significance in the region.

“Pitfalls” of the Code. Given the deserving positive assessment of the electoral system prescribed in the Electoral Code for local elections, some provisions of the law can be called the “devil in detail”.

Thresholds. In the original text of the Electoral Code, which was adopted by the Verkhovna Rada of the previous convocation, there was no formal barrier to the elections to regional councils and councils of large cities (that is, the “electoral quota” was the only arithmetic threshold - the number of votes needed to obtain one mandate). electoral ukraine strategy council

Probably, such “openness” is not very beneficial for large parties that will not receive the redistributed mandates given for “parties under the line”. After the presidential edits for this level of councils, they first introduced a 4% threshold, and at the last moment corrected it by a 5% threshold (the same formal barrier was in the 2015 elections).

At the “lower” level (cities with up to 90 thousand people, district, township and village councils), the real barrier is much higher: With a basic three-mandate constituency, a candidate needs 25% + 1 vote for guaranteed getting a seat; on average, approximately 12-15% for the third place may be enough. Of course, this is bad news for parties with a rating of up to 10%, interest in the franchise of which is significantly reduced.

However, the main threshold mechanism “sewn” into the Electoral Code for a key level of regional and city (90,000+) councils was laid down in the 225th article, which determines the amount of money deposit for parties and mayoral candidates. Its size is calculated by the formula: “4 minimum wages for every 10 thousand voters of the relevant council”.

For the Kharkiv city council and mayoral candidates, this amount will be approximately 2 million hryvnias (1,045,000 / 10,000 * 4 * 4723), for the regional council - twice as much.

The wording “4 minimum wages for N voters” was taken from the old Law, according to which the 2015 elections were held - they only changed the ratio by erasing one zero (instead of 4 “minimum salaries” for every 100 thousand voters they made “10 thousand voters”).

A tenfold increase of the deposit (plus allowance for a fourfold increase in the minimum salary compared to 2015 -- that is, the de facto “40-fold increase of the deposit”) - will not beat the large rating parties, as the deposit is returned to parties that have overcome 5% threshold, but all the rest (especially non-parliamentary forces) will be forced to think three times about the practicability of their participation in such an increase in the price of the “entrance ticket”.

It is interesting to compare the amount of the deposit for the local (225^th article) and parliamentary (156^th article) elections: if the formula “4 minimum salaries for every 10 thousand voters” is introduced for local councils, then for the lists to the Verkhovna Rada the deposit is fixed at the rate of “1 thousand minimum salaries”. In practice, this means that, for example, submitting a list to the Dnipro Regional Council elections will cost a little more than participating in parliamentary elections. A party that wants to submit lists to all regional councils of Ukraine will spend about 56 million hryvnias on the deposit - 12 times more than it would cost to participate in the parliamentary elections.

Open lists. The most delighted representatives of civil society in the Electoral Code were the “abolition of the majoritarian vote” and the “introduction of open lists”.

As already shown above, the majoritarian system is maintained for many levels of local elections, but the so-called “open lists” left several wide gaps for the parties to control the order in which their candidates get a seat.

How will the mandates be distributed in local elections? To illustrate the work of the new electoral system in the regional and large city councils, we will conduct modelling.

As a basis, we take the results of the elections to the Verkhovna Rada of 2019 [1] in the context of the districts of Kharkiv and calculate how 84 mandates would be distributed for the parties that are the subjects of the elections.

Of course, in the 2020 local elections, the list of participating parties will be different, they will have a different level of support, moreover, there may be other contours of districts / districts (administrative-territorial reform may affect the districts of Kharkov - at least in the bill “On the fundamentals of the administrative-territorial structure” it is stipulated that districts cannot have less than 150 thousand people) [2].

However, the purpose of this simulation is not to predict how mandates are distributed between parties (this requires up-to-date sociological data), but to evaluate the ratio of the “open” and “closed” level of the system (that is, how many parties can their parties circumvent open lists).

In the parliamentary elections of 2019 in Kharkiv, 5 parties overcame the 5% barrier. We calculate how 84 mandates of the city council would be distributed with such indicators.

Hereinafter, for calculations, we will need to calculate the “election quota” - the number of votes required to obtain one mandate. It is calculated by the formula: all votes cast for breaking the party's barrier are divided by the number of council mandates. In our simulation, the electoral quota = 413 160/84 = 4918 votes.

Let's move on to the first stage of the distribution of mandates - among district party lists. We divide the number of votes of each district list by the electoral quota in order to get the number of seats for the party in this constituency (all rounding is performed towards a smaller integer).

For example, the district list “Sluha Harodu” in the Shevchenkivskyi district of Kharkiv will receive 5 mandates (M = 5.61) as part of the indicated simulation, and 2 (M = 2.90) in Kholodnohirskyi district. And, for example, at the “Partiia Shariia”, not a single district list will receive a single mandate (all M <1), since in all areas of the city the party won fewer votes than the election quota (<4918 votes).

Thus, at the first stage, 33 out of 38 mandates of the “Sluha Narodu”, 20 of the 25 mandates of the “Opozytsiina platforma - Za Zhyttia”, 4 of the 9 mandates of the “Opozytsiinii Blok”, 3 of the 7 “Yevro- peiska Solidarnist” mandates, 0 of the 5 “Partiia Shariia” mandates.

In total, 60 mandates are distributed at the first stage, and 24 mandates - at the second stage according to the system of “closed” lists. Moreover, the proportional representation of the districts is significantly distorted - small districts that do not receive their mandate quota are in a losing position.

We also see that each party has about 4-5 mandates that go to distribution among “closed” city lists. This number according to probability theory will be equal to the number of districts divided by 2, regardless of the level of support for the party. Thus, each party that overcomes the barrier is likely to be able to hold a “closed” four or five candidates. Is it guaranteed with absolute probability? No - if the sum of the residuals after the decimal point in the quotas of the district lists is less than one, then all party mandates will be distributed at the first level.

“Half-open lists” in constituencies. We return to the first stage, in which 60 mandates are distributed according to the so-called. open list system. Here, the key blocker of “open lists” is 259^th article of the Ukrainian Electoral Code [3].

The traditional model of “open” lists implies the following: candidates take places on the list in decreasing order of the number of votes cast by voters. However, the 259^th article de facto claims that the list is closed by default (the order of the district list established by the party congress when nominating remains), and changing the list is possible only for those candidates who gained 25% of the electoral quota.

In our simulation, these 25% of the election quota (4918 votes) = 1230 votes. If the candidate does not gain this threshold of the votes cast personally for him, then he cannot take a higher position in the district list than that which the party determined during his nomination.

The key question is - how many candidates will be able to get such a number of personal votes, or at the first (district) stage, will the mandates also be distributed among those who are higher on the list? Recall that in the district list there can be from 5 to 12 candidates.

We calculate how many personal votes the “average” candidate would receive in the district list of each party (i.e., with an equal distribution of votes between the candidates).

At the same time, an important variable is the percentage of voters who will generally vote for specific candidates (and not limit themselves to voting for a party) - we will make three modelling options - for 25%, 50% and 100% of voters voting for any candidates.

We will also proceed from the fact that all parties will compile complete lists of 84 candidates, distributing them according to district lists in proportion to the number of voters in the city's districts (taking into account the range prescribed by law - 5-12 candidates).

Each of these numbers (“personal votes of the” average “candidate on the party's district list”) should be compared with 25% of the election quota - that is, with 1230 votes.

Thus, we see that it is extremely difficult for candidates from parties with less than 10% to get 1230 votes in the district, even if we proceed from the optimistic scenario that all 100% of voters will vote for a particular candidate.

But for large parties (25% or more of the rating), the system can really work like a model with “open” lists at the district level, and even the “average” candidate can accumulate 1230 votes from the party electorate in the district.

Conclusions. So, as we can see, not only in relation to parliamentary, but also in relation to local elections, the Electoral Code in its current version doesn't introduce a clear system of “open lists”.

By the way, in addition to formal levers of control over the order of candidates in the lists, there is a threat of informal ones, if, like in 2015, some parties will oblige their candidates to write statements about the rejection of the mandate at the nomination stage. A vivid illustration is “Novak's case”: when the order in the Kharkov city list “Vidrodzhennya” was changed ex-facto for passing the secretary of the City Council [4].

The system includes at least two powerful “open list” blockers. First of all, we are talking about the second level of distribution of mandates among the single city/oblast party lists. Modelling for the Kharkiv City

Council showed that almost a third (24 out of 84) of the mandates are distributed exactly at this level according to the “closed lists” system. Each party that overcomes the 5% barrier is likely to be able to conduct several candidates on the “closed side” (on average, this number is equal to the number of districts divided by two).

This loophole would not have happened if, at the stage of the distribution of mandates in the districts, rounding had not been prescribed towards the nearest lower integers. At the same time, there is some probability that the first numbers of the lists may fail (conditionally, if the sum of the balances in all districts is less than 0.5). So, even candidates with high numbers on a single list, but not willing to risk, albeit with good chances, should take care of the set of “personal votes” and try to get a mandate at the district stage.

The second blocker is the “threshold of personal votes”, which is established by 259^th Article: to advance up the “open” district list, it's not enough for a candidate to get more votes than his\her party members - he\she will need to get 25% of the election quota ( in our simulation - 1230 votes).

This threshold is the same for all candidates, regardless of party or constituency. So, it will be more difficult to overcome this threshold for candidates from parties with poor resuits in these constituencies: it's difficult to get 1230 “personal votes” when 2-3 thousand votes are cast for the entire list, in which there are 4-11 more competitors-members of the same party.

Modelling shows that at the district level, the lists are “more open” for the more “rated” parties. Obviously, of the 84 conditional candidates for the City Council, only a few will be able to count on the “loopholes” of closed lists - what should the rest do in this situation?

Unlike in 2015, the strategy of choosing a district traditionally favourable for the party and the “identification effect” with it will no longer work - votes for the party in the district are now the subject of competition for 5-12 candidates nominated by it. So, the candidates will have to go from the opposite - to find and collect “personal votes” for themselves, which will automatically go to the “party's piggy bank”.

It is critically important for candidates to explain to the constituency the new system in order to maximize not only the turnout, but also the percentage of those who, besides the “checkmark” opposite the party, will enter the number with the number of the candidate at the bottom of the ballot. So, few will be able to “sit out” on the “right” numbers, and the rest of the candidates will need to build up work and communication with voters with radically new “rules of the game” with external and internal party competition even more than before.

The version of the Electoral Code that came into force on January 1, 2020 (which may be subject to new changes) involves two electoral systems for the election of deputies of local councils: for the level of regional councils and cities with a population of 90 thousand or more - a proportional representation system with party lists in multi-member districts and 5% threshold; and a multi-member majoritarian system (2-4 mandates per district) with the possibility of self-nomination for district, city (up to 90 thousand population), township and village councils.

A multiple increase in money deposit, which is returned only to parties that will get seats in the council, can be a powerful “filter”, leading to a decrease in the number of participating parties.

From the point of view of democratic standards, such a “rise in price of entrance ticket” and the lack of equal opportunities for parties is an extremely negative phenomenon - it was possible to realize the same idea of a “filter” through a mechanism for collecting signatures for registration, rather than an absurdly expensive deposit for participating in local elections.

In addition to the deposit, the Code contains several other norms that demotivate the democratic party building - for example, the ability to use the regional party organization as a universal subject of nomination (without the need to register district or city cells), as well as expanding election levels where candidates have the option of self-nomination.

Abstracting from candidate strategies, the effects of “open lists” in this form can greatly disappoint those who believe that the “grid”, “buckwheat” and the administrative resource are attributes of an exclusively majority system.

If the candidate's goal is to search conditionally in the district with 100,000 voters for 1230 votes for himself (and incidentally for the party), then the “open lists” themselves do not insure against such unfair voting practices. Eradicating the various forms of voter bribery and “controlled voting” is impossible only through reforming the electoral system, without changing the political culture as a whole.

Список використаних джерел

1. Позачергові вибори народних депутатів України 2019 року [Електронний ресурс] // ЦВК - Режим доступу до ресурсу: https://www.cvk.gov.ua/pls/vnd2019/wp001.

2. Проект Закону про засади адміністративно-територіального устрою України [Електронний ресурс] // Верховна Рада України - Режим доступу до ресурсу: http:// w1.c1.rada.gov. ua/pls/zweb2/webproc4_1?pf3511=67986.

3. Виборчий кодекс України [Електронний ресурс] // Законодавство України - Режим доступу до ресурсу: https://zakon.rada.gov.ua/laws/show/396-20.

4. Депутаты Харьковского горсовета от «Відродження» массово отказываются от мандатов [Електронний ресурс] // mykharkov.info. - 2015. - Режим доступу до ресурсу: https://mykharkov.info/news/depu- taty-harkovskogo-gorsoveta-ot-vidrodzhennya-massovo-ot- kazyvayutsya-ot-mandatov-76352.html.

References

1. Pozacherhovi vybory narodnykh deputativ Ukrainy 2019 roku (Extraordinary elections of the People's Deputies of Ukraine in 2019) [Electronic resource] // CVK - URL: https://www.cvk.gov. ua/pls/vnd2019/wp001.

2. Proekt Zakonu pro zasady administratyvno-terytori- alnoho ustroiu Ukrainy (Draft Law on the Principles of the Administrative and Territorial System of Ukraine) [Electronic resource] // Verkhovna Rada of Ukraine - URL: http:// w1.c1.rada.gov. ua/pls/zweb2/webproc4_1?pf3511=67986.

3. Vyborchyi kodeks Ukrainy (The Electoral Code of Ukraine) [Electronic resource] // Legislation of Ukraine- URL: https://zakon.rada.gov.ua/laws/show/396-20.

4. Deputaty Kharkivskoi miskrady vid «Vidrodzhen- nia» masovo vidmovliaiutsia vid mandativ (Deputies of Kharkiv City Council from “Renaissance” massively refuse mandates) [Electronic resource] // mykharkov.info - URL: https://mykharkov.info/news/deputaty-harkovskogo-gors- oveta-ot-vidrodzhennya-massovo-otkazyvayutsya-ot-man- datov-76352.html.

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