The voter was not seen as an observer

By participating in remote electronic voting (DEG), the voter thereby agrees with the established procedure for such expression of will. This follows from the decision of the Tverskoy Court of Moscow, which found no violations in online voting in the election of the head of the Moscow region. This was the first attempt to challenge the election results on the federal platform of the DEG. But when filing his claim, the applicant tried to “sit on two chairs,” the expert notes, and in the end the experience was unsuccessful.

The Tver court refused to review the results of the DEG in the Moscow region on the grounds that the citizen who challenged them was not allowed to participate in the elections as an observer. The court made this decision in December 2023, but it was published only on January 30. “An observer from an electoral association… is not a bearer of independent interests related to the exercise of the right to elect and be elected to government bodies,” Judge Maria Gribova cites the position of the Constitutional Court, which clarified back in 2013 that observers do not have the right to replace candidates and parties in disputes about the protection of their voting rights.

A lawsuit to cancel the results of the DEG in the 2023 gubernatorial elections in the Moscow region was filed by the head of the department of electronic voting systems at MSTU. Bauman Victor Tolstoguzov. He himself voted online, and was also appointed as an observer at the territorial election commission (TEC) of the DEG from the Communist Party of the Russian Federation. However, he was not allowed into the building of the Central Election Commission, where the TEC DEG was located, citing a ban from the FSO. Thus, according to the applicant, the fundamental principle of transparency and openness of the voting procedure was violated. He also referred to the lack of publicly available certificates and attestations issued by the FSB and FSTEC confirming that the DEG equipment ensures the safety of voting results and reliably establishes its results, as well as information on the technical data of the system and the operating manual required for TEC members, observers and operator of the DEG software and hardware complex.

The representative of the TEC DEG insisted in court that the applicant does not have the right to challenge the voting results with reference to violations of the observation procedure, since the claim was filed on behalf of the voter, and by law he can only refer to a violation of the procedure for compiling the voter list or the voting procedure and summing up the election results. Claims about the lack of certificates, attestations and instructions actually come down to disagreement with the procedure of the DEG, which is established by law and decisions of the Central Election Commission and does not imply the publication of such documents.

The court in its decision actually repeated these arguments, supplementing them with references to the resolution of the Constitutional Court, which back in 2013 denied observers the right to independently (without the participation of a candidate or the party that nominated him) challenge the voting results. And since the plaintiff goes to court as a voter, he cannot refer to a violation of his rights as an observer, the Tverskoy Court points out. He also notes that the plaintiff participated in the elections precisely through the DEG, although he had the opportunity to vote with a paper ballot. “By these actions, the administrative plaintiff agreed with the established procedure for conducting the DEG,” the decision emphasizes. As for complaints about the lack of publicly available certificates, neither federal laws nor the procedure of the DEG provide for the publication of such documents. Also, according to the court, the applicant did not provide evidence that the established results of the DEG do not correspond to the actual will of voters.

The chairman of the TEC DEG for the 2023 elections, Oleg Artamonov, told Kommersant that he was completely satisfied with the court’s decision. Viktor Tolstoguzov, on the contrary, does not agree with the decision and has already appealed it to a higher authority. In his opinion, the court actually refused to examine the evidence presented, simply citing the fact that the voter cannot defend his rights on the basis of violations identified by him, as an observer.

The applicant was unable to “sit on two chairs,” states electoral lawyer Anton Rudakov. But the dispute, in his opinion, may continue in higher authorities, because the court almost directly made it clear that the regulations that determine the procedure for the DEG should be challenged first of all. At the same time, the Tverskoy Court’s argument that a voter, having used the DEG, automatically agrees with the established rules, is situational and is unlikely to become widespread in judicial practice, the expert adds.

Anastasia Kornya