Improper misprints – Newspaper Kommersant No. 65 (7510) dated 04/14/2023

The Constitutional Court (CC) will once again check the norms of the electoral legislation regarding the registration of candidates for elections. The court accepted for consideration the complaint of the Orenburg branch of the Communist Party of the Russian Federation, which asks to deal with the practice of refusing to register the entire party list due to typos in individual names. This is a common practice for dropping candidates, which other parties also face, the expert confirms. And, in his opinion, only the Constitutional Court can really change it.

The Constitutional Court accepted for consideration the complaint of the Orenburg branch of the Communist Party of the Russian Federation on the norms of the law on the basic guarantees of the electoral rights of citizens, regulating the procedure for nominating candidates by political parties. This was reported on the website of the court. The precedent referred to by the communists occurred at the by-elections of deputies of the Orsk city council, held in September 2022. The Communist Party of the Russian Federation put forward its own list of candidates for them, but the electoral committee of the Sovietsky district of Orsk refused to certify it, citing inaccuracies in the documents: the name of one of the candidates in the ballot for secret ballot and in the minutes of the meeting of the counting commission was misspelled. “And if the list is not certified, then the candidate cannot submit documents for registration to the election commission,” explains Maxim Amelin, first secretary of the Orenburg regional committee of the Communist Party of the Russian Federation. “Thus, all our single-mandate members dropped out of the fight. We do not argue with the fact that a typo was made in the name of one of the candidates. We acknowledge the mistake and agree that the election commission should have excluded this deputy from the list. But three more people who also dropped out of the fight – we believe that their rights were grossly violated.

The Communist Party of the Russian Federation tried to challenge this decision, first in a higher election commission, and then in court, but was refused everywhere. The courts recognized the typo as a critical violation, and also concluded that the electoral association violated the nomination procedure by re-sending the notice of nomination of candidates to the commission – already with updated data.

But the law does not prohibit the repeated nomination of candidates by the party, especially since it was carried out after the election commission refused to certify the list submitted for the first time, the Orenburg communists insist in their complaint. In addition, they remind, the commission is obliged to immediately notify candidates of shortcomings in the documents. However, the electoral association did not receive any notification and was deprived of the opportunity to correct the situation, which could have been done simply by withdrawing the candidate whose name had been misspelled. It could also be excluded by the commission itself. The applicants recall that earlier the Constitutional Court had already recognized as unconstitutional the norm of the law “On elections of deputies of the State Duma”, which allowed the Central Election Commission to remove the entire list of single-mandate candidates due to individual errors. From the position formulated then by the court, it follows that those candidates in respect of whom no errors were found should be admitted before the elections, however, in the Orenburg case, the courts of general jurisdiction ignored this position, the authors of the complaint believe. Therefore, the Orenburg Regional Committee of the Communist Party of the Russian Federation asks to declare unconstitutional the norms of the law on guarantees of voting rights – in the part in which they allow refusing to register the list due to typos in the information about its individual representatives.

Misprints are such a tool for selective screening of lists, which is very often used on the principle of “friends – everything, the rest – the law,” says Oleg Zakharov, an electoral lawyer and former chairman of the Yaroslavl Regional Electoral Committee. The commission, he explains, can simply notify the party about the shortcomings, and it will correct them, or exclude candidates with errors from the list and register it. This approach is also followed by the Constitutional Court, which first obliged the election commissions to notify candidates and parties of shortcomings in their documents in order to avoid refusals on formal grounds, and then also insisted on the commission’s duty to notify also of incomplete documents, the expert recalls. In practice, this rule was interpreted in such a way that it was necessary to notify about shortcomings in the submitted documents, but not about the absence of the necessary documents, and for this they refused without notice. If the commission is motivated to apply a formal approach, then it can interpret discrepancies in the lists of candidates as a violation of the nomination procedure, and this is already the basis for removing the entire list, Mr. Zakharov explains. And without the intervention of the Constitutional Court, in his opinion, “this paradigm cannot be deployed.” Although it is obvious that the situation when the electoral commission, for the same factual basis, is able to register the list and withdraw it, cannot be considered reasonable and fair, the lawyer believes. He recalls that in the same 2022, in North Ossetia, the list of the New People party, which consisted of 70 people, was removed in the elections to the regional parliament due to an error in the name of one and in the patronymic of the second candidate. If the Constitutional Court now supports the Communists, then it will be possible to seek a review of earlier decisions in other cases, Oleg Zakharov hopes. Also, the Constitutional Court may, in its resolution, initiate the need to amend the electoral legislation in order to exclude the possibility of such application of the controversial norms of the law in the future, the expert concludes.

Anastasia Kornya