Proposed amendments to the Election Code of Georgia include some positive changes but raise some new concerns which add to long-standing fundamental issues that remain unaddressed, said the Venice Commission and the OSCE/ODIHR in the joint urgent opinion on draft amendments to the Election Code of Georgia published on 30 April 2021.
The Venice Commission and ODIHR underline the importance of the stability of electoral law, which is a precondition to public trust in electoral processes and implies that electoral legislation, and especially its fundamental elements, should be amended well before the next elections. The practice in Georgia of frequently amending the electoral legislation risks undermining the integrity of the electoral process and ongoing efforts to consolidate democracy, they note. Moreover, the timing of the currently proposed changes, less than one year before the next local elections planned for the second half of 2021, gives rise to concerns.
The positive changes in the draft amendments to the Election Code include those related to measures tackling misuse of administrative resources: the list of those banned from conducting and participating in campaigning during normal working hours has been broadened to include all “public servants”, and the definition of “public school teachers” clarified to cover directors and other education establishment employees. This “significant initiative” needs to be furthered, as the draft law does not address, for instance, online social media campaigning by public servants during working hours and use of official government webpages for campaign purposes.
The process for determination of the election results has been strengthened and the electoral dispute resolution process enhanced, the opinion notes.
However, concerns are raised with some of the proposed amendments, for example those concerning the composition of election commissions, and many fundamental issues remain outstanding.
ODIHR and the Venice Commission make the following key recommendations for further improvement of the draft amendments to the Election Code.
As far as the election of members of the Central Election Commission (CEC) is concerned, it is recommended to consider introducing a qualified (e.g. 2/3) parliamentary majority vote or a double majority requirement (requiring a majority among MPs both of the ruling parties and the opposition parties) for the election of the chairperson and non-partisan members of the CEC, with a final anti-deadlock mechanism. Furthermore, higher credentials should be required for non-partisan CEC members and a diverse membership in the selection commission that undertakes a transparent, merit-based nomination process should be ensured.
It is also recommended to remove the specific restrictions of the right for a party to appoint a member to the CEC, i.e. the conditions that the party is entitled to state funding and that at least one of the party members actually “carries out activities of the member of the Parliament”, which would exclude parties boycotting Parliament. “Depriving individual parties of the established right to participate in the election administration is not the proper or proportionate way” to seek the functioning of the parliament, the opinion reads.
Similar recommendations are given concerning the selection of members of District and Precinct Election Commissions.
Venice Commission and OSCE/ODIHR reiterate their long-standing recommendation to clearly set out in the law on what grounds the removal of party-nominated election commission members may be based, as the proposed amendments leave in place provisions giving parties complete discretion to dismiss their commission members.
In addition, ODIHR and the Venice Commission recommend:
- prohibiting both the presence of partisan representatives and campaign activity in the areas around polling stations on election day (the amendments are a positive step, but they are “piecemeal and narrow” and do not address the long-standing recommendation of a general prohibition against any type of campaign activity starting 24 hours prior to elections);
- adopting a comprehensive regulatory framework that specifies clear and objective criteria for granting and conducting recounts and annulments to ensure transparent, fair and uniform practice in the counting and tabulation of results and handling of post-election disputes;
- facilitating the timely handling of election disputes in the courts by allowing electronic submission of complaints to the courts, submission until midnight on the deadline day, and the possibility for remote hearings;
- further extending the timeframes for submission and adjudication of appeals and ensuring that technical formalities do not prevent due consideration of complaints;
- addressing previous Venice Commission and ODIHR recommendations requiring single-mandate electoral districts to be of equal or similar voting population;
- establishing a detailed and comprehensive regulatory framework for the use of new voting technologies. In light of the limited time remaining before the 2021 local elections, it may be that a pilot project for certain electronic technologies is the only viable option for the next elections.