Equal Suffrage, Venice Commission Opinions and Election Observation Kåre Vollan Permanent Electoral Authority of Romania and Venice Commission, Council of Europe Sinaia 4 May 2018

Background Kåre Vollan ‘International Election Observation and Standards for Systems of Representation - A Critical View’ (2017) Nordic Journal of Human Rights. Routledge Vol 35, 341-359. Recommends more specific guidelines

Equality of the Vote Anonymity: Blanc, Hylland and Vollan discuss a more formal requirement for equality: Suppose, initially, that voter K has voted for party X, while voter L has voted for party Y. Then K and L change their votes, so that K votes for Y and L for X, while all other votes are unchanged. This shall not lead to any change in the number of seats won by the parties. Elements of the system of representation Rights to stand for elections Special representation of excluded groups Group representation after conflict

Plurality systems versus PR Plurality Systems: A number of wasted votes PR in one nationwide constituency: Proved for the most equal suffrage. However: Both systems with variations are internationally accepted because of other qualities.

Geographical representation Plurality/majority: Equal size PR: Number of citizens or voters per seat. Venice Commission: CoGP: ‘The permissible departure from the norm should not be more than 10 per cent, and should certainly not exceed 15 per cent except in special circumstances (protection of a concentrated minority, sparsely populated administrative entity)’ Problematic for observers: Interpretation Administrative boundaries Compensatory seats If the magnitude of constituencies varies – does it matter?

Interpretation Hungary 2014. ODIHR: ’In a positive step, the law now provides that constituencies should not deviate by more than 15 per cent from the national average, unless justified by special characteristics. However, this threshold remains above the good practice recommended by the Venice Commission’. Norway 2009. ODIHR: The [Venice Commission] recommends that ‘the permissible departure from the norm should not be more than 10 per cent, and should certainly not exceed 15 per cent except in special circumstances (protection of a concentrated minority, sparsely populated administrative entity).’ Consideration could be given to a review of the constitutional provision for the distribution of parliamentary seats among constituencies, in order to ensure a better compliance with the principle of equal suffrage.

Administrative boundaries Hungary 2014. In a footnote, ODIHR also recognised that ‘the three constituencies in Tolna cannot meet this as the law requires constituencies to remain within county boundaries’. VC/ODIHR joint opinions have explicitly recognised that it may be impossible to meet 15 % without crossing administrative boundaries. (Armenia 2011) Example US HoR: Montana has 39.9 per cent more people for each seat than the average, and Rhode Island has 25.8 per cent fewer.

PR with Nationwide Compensation In terms of political composition: Every vote count the same The number of seats filled from certain constituencies may be more that their proportional share Examples from observation (ODIHR): Norway 2009 Bulgaria 2014 What about Romania?

Rights to stand for elections Reasonable requirements:’ Citizenship Age To some extent residency, local election Not reasonable: Education (Pakistan 2008) Dual citizenship (Moldova) Born citizen? Language? Criminal record? Mental incapacity Remember: In elections, the voters are the final judges!

Special representation of excluded groups Gender Quotas (EOMs promoting, Armenia 2012, BiH 2014) Other groups: Nepal and the EU EOM for the 2017 elections: The design of the PR quota system, which includes the Khas Arya among the groups for inclusion, has the consequence of actually enhancing the participation of elite social groups within the legislatures, increasing their dominance. The equality provisions refer only to indigent Khas Arya, but this qualification is not contained in the electoral provision. This is arguably in contravention of international standards on equality, as, under the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Elimination of All Forms of Racial Discrimination, affirmative action measures are foreseen only as a means to promote equality. In addition: Non-mentioned groups cannot stand for the PR part of elections Observe side-effects

Group representation after conflict Ethnic formulas necessary to stop a war: BiH, Lebanon Exclude other groups from representation (ECtHR 2009 on BiH) Carter Center 2009 on Lebanon

Conclusion International standards often designed for new democracies A hesitation to introduce norms which old democracies do not comply with Hesitation to include something which may be seen as political That being said, sometimes EOMs do comment on issues which should be within the area of sovereign states to decide