Amendment to electoral law raises fears over impartiality

Countdown to the end of online voting in the 2023 Riigikogu elections on the homepage.
Countdown to the end of online voting in the 2023 Riigikogu elections on the homepage. Source: Priit Mürk/ERRR

According to the amendments to the law governing Riigikogu elections as drawn up by the Ministry of Justice, the government would have more say in the organization of e-voting, which could raise doubts about the fairness of the elections. Justice Minister Kalle Laanet (Reform) rejects these claims.

The amendment would also grant the scope to cast a vote via a mobile phone (m-voting).

The National Electoral Committee (VVK), which organizes elections in Estonia, found in a letter that: "The proposed amendment as drafted by the ministry would provide the Government of the Republic with the competence of issuing a regulation in the matter of elections, something which is not in accordance with the traditionally valid principle in Estonia whereby organizers of elections are independent of political power."

The VVK's comments related to the law's intention to develop (an official term: "väljatöötamiskavatsust" (VTK), defined (link in Estonian) as a discussion and involvement document in whose framework the opinions of interest groups, specialists and ministries germane to the issue and solution variants are asked for their coordination input).

The VVK added that regulations put in place by the executive power regarding the issue of elections may have the veneer of being dictated by party political interests, even if that is not the case.

"This could undermine the credibility of elections. It can also prevent the organization of elections when there is no political consensus on the technical details. For this reason we recommend that this aspect be weighed up anew," the VVK went on.

The draft bill's explanatory memorandum states that in order to mitigate those risks pointed out by the VVK, the stipulation has it that regulations must be established well ahead of elections, while the government must involve the VVK when establishing said regulations.

However, sources familiar with the matter who spoke to ERR on the condition of anonymity suggested that the initiative goes against the principle noted above, that executive power should not be directly involved in the organization of elections.

If the government were able to determine the technical conditions underpinning the basis of, for example, e-voting, be it via laptop or mobile phone, political parties currently in power could influence the use of these channels during elections, and thus with it voter participation.

When taken together, this would lead to distrust on the part of voters as to the reliability and independence of election organization, the source said.

It was also claimed that the time-frame between the bill being sent-out for coordination approval, on September 6, and this approval due by the evening of September 20, ie. nine working days, was to short a period in which to do this, given the importance of the bill.

VVK chair Oliver Kask however would not himself provide comment on the bill at this stage, and said via a spokesperson that the VKK has not yet formed its consensus position.

Justice Minister Kalle Laanet (Reform) rejected the criticisms in a written comment to ERR.

Laanet wrote that: "Giving the government the right to introduce regulations does not harm electoral independence, but boosts consistency with the rule of law. Supreme Court opinions also state this."

"According to legislation, the electoral organizers are: The state election service, municipality and city secretaries, electoral district committees and vote counting committees," Laanet's statement went on.

"Just as the VVK is not the organizer of elections, the government will not become the organizer of elections either, if it were given the competence to establish regulations concerning the field of elections (ie. were the bill to pass – ed.)," the minister added.

The Ministry of Justice initiated the amendment of the election law so that the law also includes the possibility to cast a vote via mobile phone (m-voting).

One of the factors in this granting of greater powers to the executive may be a Supreme Court recommendation made in spring that additional rules for e-voting be inserted into the Constitution.

These currently derive from the Riigikogu Election Act and the acts of the VVK and  State Electoral Office (SVT).

The Supreme Court found in its ruling of March 30 (link in Estonian) that the regulations are strongly biased towards subordinate legislation, making getting an overview of it challenging even for people with a good legal knowledge.

The VVK stated in its comment on VTK that it agrees with the position that the technical details concerning e-voting should be partly regulated via a legislative act (in a regulation), and not via a legislative act, given that IT is developing rapidly, yet it must be possible to amend technical details on e-voting to ensure the voting system remains up-to-date and secure.

The next elections are to the European Parliament, in June 2024.


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Editor: Andrew Whyte, Mait Ots

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