The Venice Commission has published an urgent joint opinion on revised draft amendments to the Election Code of Georgia.

The Executive Summary of the document reads as follows:

“As a preliminary remark, it should be noted that any successful changes to electoral and political party legislation should be built on at least the following three essential elements:  clear and comprehensive legislation that meets international obligations and standards and addresses prior recommendations; the adoption of legislation by broad consensus after extensive public  consultations with all relevant stakeholders; and the political commitment to fully implement such legislation in good faith.

An open and transparent process of consultation and preparation of such amendments increases confidence and trust in the adopted legislation and in the state institutions in general.

The Venice Commission and ODIHR acknowledge that the revised draft amendments to the Election Code have been prepared in close cooperation between the ruling party and several opposition parties. This is particularly noteworthy against the background of the parliamentary boycott by all elected opposition parties after the parliamentary elections of October 2020 and of the fact that most of the opposition parties had therefore not participated in the preparation of the initial draft amendments assessed in the first Joint Urgent Opinion of 30 April 2021. The political agreement of 19 April 2021, the return to Parliament by several opposition parties and the revision of the draft amendments to the Electoral Code on the basis of the agreement, with a view to bringing the national legislation into line with international standards and recommendations, are clearly to be welcomed – even though not all elected opposition parties have as yet signed the agreement and taken up their parliamentary mandates.

The Venice Commission and ODIHR underline once again the importance of the stability of electoral law, which is a precondition to public trust in electoral processes and implies that electoral legislation, and especially its fundamental elements, should be amended well before the next elections. Given that the next local elections are to be conducted in October 2021, the timing of the current reform process is not ideal. It is, however, acceptable against the background of a quite
broad political consensus on this reform, which brings the national legislation more in line with international standards and previous recommendations. That said, as has already been stated in the first Joint Urgent Opinion, the practice in Georgia of frequently amending the electoral legislation risks undermining the integrity of the electoral process and ongoing efforts to consolidate democracy. The call for a more comprehensive and systemic reform of the Georgian electoral law
is therefore reiterated. Care should be taken to address the remaining concerns and outstanding recommendations in such a future reform, in order to prevent frequent changes and to achieve stability. In this perspective, it would be advisable that any future reform will not be limited to micromanagement but follow a more holistic approach. Moreover, the Venice Commission and ODIHR wish to stress once again that the ownership of the process can only take place by dialogue
amongst all the stakeholders driven by a genuine desire to safeguard and enhance Georgian democracy. Legal opinions can facilitate this process taking place on the ground but are no substitute for it.

In the first Joint Urgent Opinion on the draft amendments to the Electoral Code, the Venicev Commission and OSCE/ODIHR made four key and several other recommendations. The revised version of the draft amendments takes into account significant elements of the key recommendations, notably:

– A qualified (two-thirds) parliamentary majority vote has been introduced for the election of the chairperson and non-partisan members of the Central Election Commission (CEC), with a final anti-deadlock mechanism;
– the specific restrictions of the right for a party to appoint a member to an election commission, i.e. the conditions that the party is entitled to state funding and that at least one of the party members actually “carries out activities of the member of the Parliament” thus excluding parties boycotting Parliament, have been removed.

That said, some other elements of the key recommendations remain to be addressed:

– to require higher credentials for non-partisan CEC members and ensure a diverse membership in the selection commission that undertakes a transparent, merit-based nomination process;
– to further amend the draft provisions on the selection process of members of District Election Commissions (DECs) and Precinct Election Commissions (PECs), so as to ensure, inter alia, a transparent, genuinely merit-based process for the appointment of non-partisan members; moreover, the timeframes for submission and review of applications for PEC membership should be extended;
– to clearly set out in the law on what grounds the removal of party-nominated election commission members may be based; such removal should be permitted only
exceptionally and on very specific grounds.

Several positive draft amendments to the Election Code have been kept in the bill after the publication of the first Joint Urgent Opinion, including those related to measures tackling misuse of administrative resources, strengthening the process for determination of the election results, and enhancing the electoral dispute resolution process. At the same time, a number of further recommendations formulated in the first Joint Urgent Opinion are still valid and should be taken into account in future reforms, inter alia those aimed at

– prohibiting both the presence of partisan representatives and campaign activity in the areas around polling stations on election day; those areas should be clearly defined (e.g. a perimeter of 100 meters from the room where the ballot box is placed);
– adopting a comprehensive regulatory framework that specifies clear and objective criteria for granting and conducting recounts and annulments to ensure transparent, fair and uniform practice in the counting and tabulation of results and handling of postelection disputes;
– facilitating the timely handling of election disputes in the courts by allowing electronic submission of complaints to the courts, submission until midnight on the deadline day, and the possibility for remote hearings;
– further extending the timeframes for submission and adjudication of complaints, to three to five days, and ensuring that technical formalities do not prevent due consideration of complaints;
– addressing previous Venice Commission and ODIHR recommendations requiring single-mandate electoral districts to be of an approximately equal population size;
– establishing a detailed and comprehensive regulatory framework for the use of new voting technologies (bearing in mind that in light of the limited time remaining before the 2021 local elections, it may be that a pilot project for certain electronic technologies is the only viable option for the next elections).

Finally, the revised draft amendments contain several new elements which warrant further revision, inter alia:

– the significant reduction of the period between different rounds of voting on candidates for non-partisan members of the CEC, from four weeks to one, in the transitional provisions of Article 2(12) of the amendment bill, should be reconsidered
– the new transitional provisions of draft Article 196(20) and (22) of the Election Code and of Article 2(2) and (4) of the amendment bill, concerning the parties’ right to appoint CEC members, should be reconsidered;
– the composition and functions of the CEC consultation group should be regulated more closely in the law;
– the significant increase in the DEC and PEC non-partisan members should be reconsidered;
– the right to submit complaints to election commissions should not be limited to persons registered in an electronic registry of persons authorised for election disputes; such a possible registry may be used to facilitate the complaints process, but it must not exclude common citizens from their right to complain.”