No Voting Under Fire

Can Ukraine hold elections while it is in the midst of a full-scale invasion by Russia? This question has recently received international attention, including comments from US Senator Lindsey Graham advocating for elections during the war. However, holding elections during the current state of war faces not only factual but also legal obstacles. Genuine democratic elections cannot be conducted under fire from Russian troops.

The conditions of democracy

No state that embraces the principles of democracy, the rule of law, and respect for human rights can exist without conducting fair and just elections. This is an undeniable truth, as elections provide a platform for the constitutional principle that power originates from the people (Art. 5 (2) of the Constitution of Ukraine). The 33-year history of Ukrainian independence demonstrates how important and valuable conducting transparent and honest elections is for Ukrainian society. Ukrainians have repeatedly asserted the right to vote and defended it against attempts of falsification and manipulation of election results. Throughout its journey, both civil society and the state consistently have demonstrated their aspiration to align with the democratic European world by adhering to international electoral standards. This commitment has been recognized and commended by the global community.¹⁾

However, democracy is a profound and multi-dimensional concept. A state can construct its democratic order only when it enjoys peace, national security, economic stability, pluralism, and freedom of speech.  It is under these conditions that democratic elections can take place to establish legitimate institutions of power.

However, for the past 19 months, Ukraine has been in a state of full-scale war with Russia, with every reason to suggest that acts of genocide are being committed against the Ukrainian people. Under current circumstances, the defense of democracy in Ukraine is being waged every day with arms in hand, and it is currently difficult to say when this defense can continue not on the battlefield but at polling stations with Ukrainian people holding election ballots in their hands.

Legal and practical obstacles for holding elections in Ukraine

Art. 83 (4) of the Constitution of Ukraine legitimizes the extension of parliament’s powers during a state of war until the first session of the newly elected Verkhovna Rada of Ukraine. This session  is to be convened post the termination of a state of war or a state of emergency. A direct prohibition on holding national and local elections during a state of war is stated in Art. 19 of the Law of Ukraine “On the Legal Regime of Martial Law.” The law relies on constitutional regulation regarding the possibility of restricting electoral rights during a state of war (Art. 64 of the Constitution of Ukraine) and the impossibility of ensuring compliance with general electoral principles during war, as outlined in Art. 71 of the Constitution of Ukraine. Currently, all state authorities, including Parliament and the President, are unified in their advocacy for Ukraine’s democracy by safeguarding the country’s sovereignty and territorial integrity, which are fundamental state functions as per Article 17 (1) of the Constitution of Ukraine.

Democracy does not exist separately from human rights;its very existence is fundamentally questioned without the assurance of the latter. Genuine democracy cannot exist without upholding rights that are vital for a competitive and open electoral process, particularly the freedom of expression, assembly, and association.

On the international legal level, there are no standards for postponing elections due to natural disasters, humanitarian catastrophes, emergencies, or a state of war. Yet, history has witnessed numerous cases where such postponements were justified and proportionate to the legitimate aim of preserving human lives, an inherent and inalienable right. Given that approximately 18% of Ukraine’s territory is occupied, active combat is ongoing, and constant rocket attacks on peaceful voters within Ukraine are occuring, ensuring a safe electoral process is impossible. Furthermore, initiating an electoral process during wartime under the current circumstances carries the primary risk of its inability to conclude due to the security situation.

Today, a vast number of voters abroad and internally displaced persons, who have fled the war, present significant challenges to conducting elections.  Massive migration processes within and beyond Ukraine have made it difficult for the state to accurately track its voters. According to data from the UN Refugee Agency, about 6 million Ukrainians have fled abroad to escape the war, and 5 million have moved to safer communities and regions within Ukraine. The operation of the State Voter Register, containing data on citizens entitled to vote, was effectively suspended due to safety concerns since the start of the full-scale invasion on February 24, 2022, and has not been reinstated since, with no new information being added. Voter lists at polling stations are formed based on this Register, and being included in it allows a voter to cast their vote. Holding elections now would unlawfully restrict the voting rights of a significant number of Ukrainians based on the data from this Register.

The direct organization and administration of elections are further complicated by extensive infrastructure damage, including buildings, telecommunications, and transportation networks. The restoration of these facilities requires substantial financial resources and a considerable amount of time. Moreover, given the increasing number of individuals with disabilities in Ukraine, polling stations must be not only accessible but also tailored to comprehensively accommodate their specific requirements. Currently, responsible government bodies are actively exploring alternative strategies. However, each proposed approach must undergo a rigorous assessment, evaluating its adherence to the principles of vote secrecy and robust protection of the expression of electoral will.

No  elections under fire

Another critical concern lies in addressing the electoral rights of military personnel. Even after the termination of the state of war and cessation of hostilities, it is anticipated that these individuals will remain stationed near the demarcation line, positioned to potential military incursions from Russia.

In territories heavily impacted by the conflict and prospectively reclaimed in the future, restoring security, infrastructure, and overall civic life is likely to be a lengthy process, outlasting the recovery timeline of other regions. As a result, even after the state of war is lifted, organizing elections within these territories may remain an unrealistic prospect for an extended period. To pre-emptively address this situation, legislation mandating a clear-cut procedure and mechanism for the deferral of such elections, delineating the decision-making entity, and establishing objective security benchmarks for decision-making must be promptly enacted.

A particular challenge for Ukraine lies in organizing elections abroad. The current system of electoral precincts abroad is unable to provide all voters outside their home country the opportunity to vote. For the State Voter Register, these individuals remain “unknown” as only citizens registered at consulates are included in the voter lists at overseas precincts. Since February 24, 2022, their numbers have remained nearly unchanged. Potential innovations, such as establishing additional temporary precincts, early voting, or introducing an “active” voter registration procedure, necessitate negotiations with representatives of foreign states, and this requires time. However, Ukraine is not standing still; negotiations have already begun, seeking effective solutions to ensure the active and passive electoral rights of voters who were forced to leave their homes due to the armed aggression by Russia.

The forthcoming elections will undoubtedly be among the most challenging in Ukraine’s independent history. The demand for fair and honest elections to form a legitimate government is high among the population, and the majority of Ukrainians agree that elections should be held after the cessation of hostilities.²⁾ A significant number of influential civic organizations have already expressed a unanimous position on the impossibility of holding elections under current security conditions during a war (the statement text can be found here).

Today, both the government and society are focused on achieving victory over the aggressor so that, in the near future, a peaceful country can continue its democratic development and become a full-fledged member of the European community. Only after the shots are silenced,  and enemy rockets no longer fly, will Ukraine be able to conduct open and fair elections that reflect the sovereign will of the Ukrainian people, who are currently fighting for the right to live in their homeland.