by Velko
Miloev
Introduction
The opportunity to support
individual candidates on an open party list within the proportional
representation system is widely considered to be a major democratic achievement
in both Bulgaria and Bosnia and Herzegovina. However, ‘preferential voting’ has
led to some undesired consequences in each of these countries, both of which this
paper will consider in turn.
In Bosnia and Herzegovina
(hereinafter, BaH or Bosnia for short), open lists have been used successfully
since 2000, but key political actors have advocated for a return to closed
lists for several years. Following a new wave of allegations of extensive abuse
of the preference system in the 2014 elections, the issue is likely to continue
to fuel the ongoing debate surrounding electoral reform.
In Bulgaria, like in BaH, public
support for open lists is linked to the widespread disillusionment with
political elites. However, unlike in BaH, where open lists were initially easily
introduced when post-war elections were still internationally administered, in
Bulgaria it took years of pressure from civil society until open lists were
finally regulated in a manner that gave voters a practical opportunity to
reorder candidates in 2014. The results led to renewed calls on behalf of some
parties to reconsider their use.
In BaH, a voter may mark as many
individual candidates as there are names on the selected party list without
providing a preference order. Possibly the most serious problem encountered on Election
Days is the addition of fake preferences by corrupt poll workers during the
count. In essence, candidates organize the stealing of votes within a party
list.
In Bulgaria, the ballot paper
includes the numbers and names of all political entities along with boxes with
digits to tick the list number of one preferred candidate if a voter chooses to
do so. In 2014, many voters made a politically meaningful use of this option,
although various landslide victories of hardly known candidates lucky to have
the same number on their party list as the ballot number of the party itself marred
the 2014 elections.
This case study will examine a
number of issues including legal framework and ballot design, the roles of
political parties and civil society in the electoral debate, campaign
techniques, and voter education.
The Bosnian case – a democratic
achievement marred by fraud?
Legal framework and history of the
open lists
Bosnia and
Herzegovina currently uses a proportional representation (PR) system with open
party lists for the lower houses of the national parliament and the parliaments
of the two semi-autonomous entities, the cantonal assemblies, and the municipal
councils’ elections.[1]
A voter may mark an unlimited number of candidates within a
selected list. All of their names appear on the ballot paper, which makes it
relatively large (up to A2 size), but not necessarily difficult to manage.
Mandates are allocated in multi-member electoral districts first by ‘political
subjects’ (parties, coalitions, independent candidates) using the Sainte-Laguë formula. Then, within each winning list, seats are assigned
to candidates starting with those with the highest number of preferences as
long as they constitute not less than 5 percent of all valid votes for the
party.[2]
Figure 1 - Detail from a training material produced by the Central Election
Commission of BaH showing how to mark a ballot
|
The Bosnian public has warmly
welcomed the concept of the open list since its introduction. In 1999 this
author, as project manager at one of the BaH offices of the International
Foundation for Electoral Systems, had the chance to supervise locally hired
IFES trainers supporting a country-wide OSCE led public information campaign on
BaH’s new Electoral Law. Face-to-face community activities clearly confirmed that
the concept of voting for individuals was well understood and appreciated. Comments
from citizens indicated growing dissatisfaction with political parties’
underperformance and lack of accountability quite early in the beginning of
Bosnia’s democratization process after the 1992-1996 war.
The open lists were first tested
in local elections in April 2000 and, subsequently, in the general elections in
the autumn of the same year.[3]
While the author of this study was unable to find any statistical data on the
implementation of the open lists in the country, a quick review of the
electoral results in 2000 highlighted the success of the open lists –
approximately 20 percent of the new municipal councilors would not have been
elected without preferences.
Ten years later, Bosnian civil
society had to defend this system, while at various points over the last 5
years at least four major political parties have advocated closing the lists.[4]
The pros and cons, real or fake arguments for closing the lists
A public statement by the Party
of Democratic Action (SDA) made in January 2010 stated the following reasons
for abandoning the open lists:[5]
- Securing representation of all constituent peoples and the others in
all BaH parliaments;[6]
- Securing the representation of women and youth;
- Equal territorial representation in multi-member electoral
districts;
- Satisfactory qualification levels of elected representatives;
- Preventing electoral fraud
through adding [fake] preferences by the polling station committees (PSCs).
‘Eliminating electoral
engineering’ and ‘better minority gender representation’ were again arguments presented
in an SNSD-SDP agreement on legislative action from 2012.[7]
Open and closed lists were
debated in the run up to the 2010 and 2014 general elections, and the issue has
also been on the agenda of the official working groups tasked with proposing changes
in the Electoral Law.[8]
As of this writing, the
candidates’ lists in BaH are still open for several reasons, including the
general inability of Bosnian political players to reach parliamentary consensus
on any reform (including electoral reform) and pressure from civil society
groups like NGOs and the media. Civil society qualified the eventual closing of
the lists as “another step towards ‘partocracy’ and decision making limited to
closed centers of power,” which would lead to “further limitation of citizens’
influence over political developments.”[9]
Other observers or party representatives noted that closing the lists would be
a step backwards from a democratic achievement and would negatively impact
voter turnout.[10]
Indeed, most of the ‘closing’
arguments appear, to a certain extent, to be falsified and designed only to
hide the parties’ desire to restore control over who will be elected as MP.
While gender representation is
indeed an issue in Bosnia’s parliaments, it does not appear to lie in the
center of the electoral debate. As in other countries that combine gender
quotas and open lists, there is conflict between these two positive aspirations.
Amendments to the Electoral Law before the 2014 elections raised the quota for
the ‘less represented gender’ from 25 to 40 percent, with female names equally
distributed from top to bottom on each candidates’ list. Ultimately only 19
percent of seats in the state and entity legislatures were won by women as a
consequence of voters’ preferences.[11]
But parties have never asked citizens whether they would be willing to
sacrifice the open lists for the sake of greater female representation.
In addition, the attention given
to minorities does not appear to be genuine. Bosnia’s electoral legal framework
still contains ethnicity based constitutional limitations of both active and passive suffrage
rights, particularly affecting those who do not identify themselves with one of
the three constituent peoples. These limitations contradict a number of binding
documents or recommendations of the OSCE, the PACE, the EU, and a 2009 decision
of the European Court for Human Rights. As the OSCE/ODIHR
observation mission noted in its final report on the 2014 elections, “it
is regrettable that this is the second election held in violation of the Sejdić-Finci
judgment of the ECtHR.”[12]
Other ‘closing arguments’ are
also far from convincing. Seeking better territorial representation is somewhat
irrelevant in the case of relatively small electoral units in BaH, and voters
using preferences would certainly consider candidates who are likely to come
and talk to their constituency after being elected. It also unlikely that
voters are eager to spoil the ‘qualification levels’ of MPs by backing the least
qualified candidates.
All these arguments considered,
the allegations of manipulating the open list in various elections since 2008
appear credible.
The abuse of the open lists – a
specific BaH problem
The addition of fake preferences
to individual candidates by members of a polling station committee (PSC) is probably
the most worrying Election Day violation in Bosnia. This fraudulent behavior
requires complicity among both PSC members and those present during the count.[13]
Such complicity is reportedly not difficult to establish since the fake
preferences mean stealing votes from within a list rather than from parties.
Hence, a PSC member charged to count the individual votes on the stack of
ballots for the party which nominated him as a poll worker may simply add X’s next
to certain candidates’ names. PSCs in Bosnia are appointed exclusively on the
basis of party nominations through a lottery. For example, once party A gets
entitled to certain positions at certain polling stations, it may offer these
to party B, which would nominate its loyal supporters (formally on behalf of
party A). This can be a trade-off for cash, or A and B might “exchange” poll
workers’ positions in areas where each of them has a stronger political
interest to win. This practice complements parties illegally paying poll
workers and intimidating or bribing observers. On paper, a PSC’s composition
appears to be in complete compliance with the rule that none of the political
contestants may be represented with more than one member, but in reality a
given PSC might be in full control of one or two political parties.
A consensual crime is difficult
to observe and prove independently, and the Central Election Commission of
Bosnia and Herzegovina (CEC BaH) does not publish election results at the polling
station level that are detailed enough to allow a thorough analysis. Thus,
reports about modifying preference votes are mostly anecdotal. There are some clearer
indications of fraud, such as when a candidate that is neither a resident nor
popular in a certain area wins hundreds of preference votes at a certain polling
station and zero preference votes at another polling station in the same
community. It is also highly suspicious when a candidate receives preferences tallying
close to the total number of votes for their party. Finally, many marginal
political subjects, particularly independent candidates and some ‘phantom’
parties, receive almost no votes. Observers believe that they registered for
the elections solely to become entitled to positions in the PSCs that they
would subsequently trade off.
For the first time in a decade, the
general elections in October 2014 saw a large domestic non-partisan observation
effort. A coalition of seven NGOs named “Pod lupom” (“under the magnifying
glass”) covered roughly 25 percent of all polling stations based on a random
sample throughout the whole country.[14]
Only 0.6 percent of the coalition observers reported witnessing fake
preferences added during the count. This can be seen as evidence that
independent observers can deter fraud.
In the same time, in a number of
official and informal interviews conducted by this author during late autumn
2014 in Sarajevo with members of the electoral administration and high ranking
party representatives, the abuse of the open lists was indicated again as a
widespread problem at polling stations unattended by non-partisan observers or
at least an issue of major concern. Some interlocutors proposed the closure of the
lists.
Saving the open lists –
possible solutions
Many stakeholders from the
electoral administration and civil society insist on replacing the current political
model for appointments to PSCs with a mixed political-professional model. This implies
that the chairperson and some members are selected by the municipal electoral
commissions from among public workers.[15]
In addition, Bosnians could use
open lists throughout Europe and the rest of the world as examples, paying particular
attention to the number of preferences each voter is allowed as well as the
design of the ballot.[16]
Limiting a voter’s preference to
two or three candidates would likely fall within the realistic scope of choice
that an average voter may wish to have and would make any other additional
marks on the ballot paper easier to detect. If only one personal vote within a
party list is allowed, any additional marks will make the ballot valid for the
list only.
Using a stamp as a ballot marking
tool will make fraudulent activities easier to control as pens and pencils are
– contrary to the rules in BaH – usually available on the counting table.
A simpler ballot design without candidates’
names would allow PSC members and observers to more efficiently control each
other during the count and would also resolve other technical issues Bosnia has
with printing, packing, and controlling the ballot papers during the process.
Such a ballot would only contain boxes to mark the list number(s) of the
preferred candidate(s).
Figure SEQ Figure 2
Fragment from a ballot paper used for the 2013 municipal council elections on
Kosovo. Note that the boxes with the list numbers of the candidates start from
#2 - no preference marked automatically counts for the #1 on the list.
Furthermore, a write-in ballot
(e.g., with just two boxes to enter digits) would be very unusual in Bosnia but
would almost fully eliminate the options for changing the voter’s preference.
More importantly, it is hoped
that continued and widened presence of domestic non-partisan observers will
further limit various types of fraud committed at polling stations. More detailed
results published by the CEC would enable observers to use statistical tools to
detect any signs of fraud, including suspicious deviations in numbers of
preferences for candidates.
By mid-September 2015, the usual
inter-agency working group for amending the legislation will be just about to
start its work. It remains to be seen what new proposals will be put on the
table. Much depends on the willingness of politicians to accept the
recommendations from civil society, electoral administration, and the
international community.
The electoral reform in
Bulgaria - citizens vs. the political establishment
History of the debate
over the open lists
Bulgarians voted with open lists for
the first time in the European Parliament (EP) elections in May 2007, just a
few months after the country became a member of the European Union. For a
candidate to move up the list, they needed to receive a number of preferences that
equated at least 15 percent of all valid votes for the party. Few people
believed that this process could work and indeed, it did not. Since then, the
size of the threshold required for preferences to take effect has been a key
issue in the electoral debate. Moreover, since 2007, the laws provide for only one
optional preference.
In 2011, the then ruling centrist
GERB party[17]
passed the first ever Bulgarian Electoral Code, which replaced the four laws
that previously regulated different types of elections. The threshold for the
preferences to count was nine percent for the National Assembly and six percent
for the EP elections. However, before the national elections in 2013, GERB and
a majority of MPs agreed to delete the words ‘preferential voting’ from the Electoral
Code. Apparently, the politicians feared the unpredictable impact of the
implementation of open lists for the first time in unequally-sized electoral
districts[18]
and were concerned about ‘brother-against-brother wars’ between candidates of
the same party.
But there was also a key
technical issue – the MPs did not know how to design the ballot. The assumption
at the time was that all candidates’ names must
be printed on an open list ballot paper. With some 20-30 parties and coalitions
normally running in national elections, the ballot would have become uncommonly
large compared to what Bulgarians were used to. Thus, the code envisaged that
there would be separate ballots for each party placed in ‘modular boxes’ inside
the polling booths. An electronic device would issue just one ballot once the
voter pressed the button for the selected party.[19]
It turned out that the drafters of the code did not know how to design and
produce these devices.[20]
Civil society organizations and some politicians tried to defend the open lists
but lost this round of the debate.[21]
Following the 2013 elections, a
new parliamentary majority formed around the Bulgarian Socialist Party (BSP)
opted for drafting a new Electoral Code. In an effort to demonstrate better
responsiveness to the citizens’ requests, they formed a Public Council to the
Interim Parliamentary Committee for developing the code. An official report,
summarizing the various proposals, highlighted that NGOs as well as high-ranking
independent experts almost unanimously backed open lists in all PR elections
with low or zero thresholds.[22]
A smaller number insisted that it should be mandatory
for voters to mark several preferences (each of which would have equal weight as
is the case in Bosnia). The most common phrase in this report, also evident in
the Bulgarian electoral debates over the last few years, was ‘majoritarian
element.’
Technically speaking, a ‘majoritarian
element’ involves introducing a mixed electoral system with a certain number of
MPs elected from open lists and others elected in a plurality or majority voting
system in single-member constituencies. The general political context in
Bulgaria shares some attributes with the situation in Bosnia and Herzegovina. In
Bulgaria there are concerns that parties are accumulating too much power and use
it to facilitate non-transparent political deals in support of various economic
interests. Such concerns explain why citizens desire selecting their
representatives through open lists. The political establishment, on the other
hand, prefers to choose their own disciplined members of parliament.
One striking instance of
unprincipled, ad hoc parliamentary majorities making decisions against the
prevailing public opinion took place in 2015, when the parties in the National
assembly cancelled the planned referendum on the introduction of a mixed
proportional-plurality/majority electoral system. This cancellation happened despite
the fact that two of the parties had previously helped to collect the 500,000
signatures needed to initiate the referendum.[23]
Looking back at 2013, the debate
over the threshold for the open lists also clearly showed the parties’ desire
to retain control over the people’s future representatives. Parties are
legitimately concerned about the fact that with a very low threshold, small
organized groups would be able to change the majority of voters’ will.[24] Nonetheless, they rejected the possible
solution of making preference voting mandatory, and some insisted on a 20
percent threshold despite the failure of a 15 percent threshold in Bulgaria.
The strongest opponent of the open lists, the Movement for Rights and Freedoms
(DPS), requested a 50 percent threshold.[25]
The new Electoral Code was passed
in February 2014 and kept the PR system in place with open lists and one
optional preference. It provides that for preferences to become effective, a
candidate must receive at least 7 percent of all valid votes for the list in an
election to the National assembly, 5 percent in elections to the EP, and 7 percent
from the municipal electoral quota in elections for local councils.[26]
This was a significant disappointment for many who wanted a ‘majoritarian
element’ and lower thresholds.[27]
A further disappointment was the rule that if no preference had been marked on
the ballot, it would count as one for the top candidate.[28]
The Sudoku ballot paper
and its consequences
Despite these dissatisfactions
with the legal provisions, the preferences worked in subsequent elections. Civil
society had succeeded not only in achieving non-excessive thresholds, but also
in introducing a new ballot design. At the Public Council, the Head of the
Parliamentary committee demonstrated a patchwork of ballots from previous
elections (with all candidates’ names) pasted on an A1 size sheet in an effort
to demonstrate that the open list ballot paper would be unmanageable. A member
then proceeded to pass to the Council a sample ballot paper from a Kosovo
election, which this author had observed (see Figure 2). The design was
accepted with a mixture of enthusiasm and skepticism.
Figure 3 - The initial generic
design of the ballot for the 2014 Bulgarian election to the European
Parliament.
The section on the right – the boxes
for marking individual candidates with respective list numbers - became known
as ‘Sudoku.’ Subsequently, the DPS proposed that the squares should be replaced
with circles so that parties opposing the open lists could more easily instruct
their supporters to not bother with preferences.
According to different exit polls
and observers’ reports, between 26 and 42 percent of Bulgarian voters marked a
preference in the May 2014 EP elections. Four out of the 17 Bulgarian MEPs were
elected as a result of these individual votes.[29]
This included a case of particular political importance for the newly
established centrist coalition, named the Reformist Block, in which the second candidate
on the list defeated the top candidate and won the only RB seat. Even more astonishing
was the case of the BSP, which as a party had the ballot number 15. The then
hardly known young candidate with the list number 15 received 34,124
preferences while the party’s leader, placed on top of the list, only received 28,039.
This became known as the ‘15/15 effect.’ Such results happened again at the
National assembly elections in October of the same year (as 9/9, 11/11, 18/18
etc.). A number of factors contributed to this undesired phenomenon.
First, the party campaigns
frequently emphasize the list number of the party. This can lead to much
confusion, particularly among rural, less educated segments of the electorate. Second,
most candidates fell well short of campaigning for their preferences, while the
voter education efforts of the CEC were limited and inadequate. A 38 second
long, poorly produced video proved unable to familiarize the public with the
new ballot design, and even well-informed observers struggled to find the
official sample ballot, well hidden among hundreds of bylaws and attachments on
the CEC website. Indeed, even civil society did very little to educate citizens
about the new rules.
Still a success story,
but an uncertain future remains
A study published by the
Bulgarian NGO IPED used results protocols from multi-member districts to show that
in October 2014, 35 percent of voters marked a preference, with these voters unevenly
distributed among parties and regions. Twenty out of 240 members of the
National assembly were elected because of preferential voting.[30]
Even a quick, random review of
official results reveals many cases in which low ranked candidates with list
numbers the same as the party ballot number received a surprising number of
individual votes. According to IPED, the ‘15/15 effect’ accounts for 12.3
percent of all preference votes. Several winning candidates declined their seats,
admitting they were undeserved.
Still, in 2014, the open list
worked for the first time in the country despite five and seven percent thresholds,
low expectations, and political opposition.[31]
Some public statements indicated that parties were taken by surprise by the
impact of the open lists. Some unclear and unsubstantiated allegations that
preferences led to large numbers of invalid votes suggest the use of the
‘15/15’ phenomena as an excuse to try to close the lists.[32]
The history of electoral reform
in Bulgaria has seen examples of how making amendments to legislation in order
to meet public demands on one issue can be used to reverse achievements on
another. Civil society should remain on high alert and fight to hold onto
previously won accomplishments in official formats for debates. Furthermore,
CSOs could take the responsibility to implement CEC sponsored voter education programs.
A more aggressive approach to attracting
citizens with high quality research and proposals will only aid in bringing
about electoral reform.
[2]
Ibid, Articles 5.14, 5.15, 9,5, 9.8.
[3]
Held still under the Rules and Regulations of the internationally chaired
Provisional Electoral Commission.
[4]
The scope of the online research carried out for
this case study is from January 2010 – before the general elections the same
year, until September 2015. The parties
in question are: the Party for Democratic
Action (SDA), the Social Democratic Party (SDP), the Croat Democratic Union of
BiH (HDZ BiH), the Alliance of Independent Social Democrats (SNSD).
[6]
According to the BaH Constitution, constituent peoples are the Bosnian Serbs,
the Bosnian Croats and the Bosnian Muslims (Bosniaks). Citizens, who do not
identify themselves as one of the above, are referred to as ‘Others’.
[13]
Until 2014 there were only large numbers of party agents accredited, but very
few non-partisan observers.
[14]
The author of this study served as EU election observation expert to the Coalition
from June 2014 to March 2015.
[17]
Citizens for European Development of Bulgaria - GERB
[18]
For the elections to the EP Bulgarian is one multi-member constituency.
[19]
Separate ballot papers for each party had been used in previous elections –
simply put on a table inside the polling booth, but there were concerns about
the lack of control over these ballots.
[23]
The referendum was officially proposed by the President of the Republic
following waves of street protests and other civic activities in 2013-2014 with
a number of social and political demands. The question on the eventual
introduction of mandatory voting was also rejected in parliament, thus only the
question on ‘distant’ (electronic) voting remained on the referendum ballot for
25 October 2015.
[24]
If few voters use preferences, implicitly supporting the order of candidates as
presented by the party, a small active group could give their candidate
decisive advantage.
[25]
DPS is largely representing Bulgarian ethnic Turks. It is known as a party with
strong grassroots structures and disciplined electorate with lower than the
average educational level.
[26]
Electoral Code as adopted on 21 February 2014. Articles 246, 261, 298, 353,
371, 386, 427. Not available in English.
[27]
The 2015 Venice Commission report on PR systems and open/closed lists describes
the Bulgarian thresholds as ‘moderate’. Ibid.
[28]
Except in elections to the EP.
[31]
In 2014 BSP, the second largest party, issued a circular to its field
structures prohibiting campaigning for preferences - http://www.capital.bg/politika_i_ikonomika/.
Nevertheless, 42 percent of its voters marked one according to IPED data.
[32]
In 2015 the CEC abandoned the envisaged audit of invalid ballots despite
earlier positive discussions at the Public Council to the CEC.
