Difficult for non-voting Center members to appeal Tallinn election result

Center party members who believe privacy rules were broken at last Sunday's mayoral vote are still considering whether it is worth going to court. Several legal issues stand in their way, including the fact it is difficult to violate the rights of members who did not vote on the day.
On Wednesday (April 17), Center party members alleged privacy rules had been breached during the voting on Sunday (April 14) which elected Jevgeni Ossinovski (SDE) as mayor of Tallinn.
Ossinovski received 41 votes, just over the 40 needed for a majority. Center members said they noticed a pattern on the ballots that revealed how coalition members voted in the third and final round. This, they say, breaks rules around voting secrecy. Additionally, some members said they had photographed their ballots.
Chancellor of Justice Ülle Madise said such behavior is objectionable.
"Photographs of marked ballot papers have appeared in the media, which appear to show a pattern indicating which political group's members vote has been cast. There have also been reports of people photographing their own ballot papers and showing their choice to others," Madise said. "Indeed, based on this information, it is necessary to reiterate the explanations given for many years that this is not compatible with the principle of freedom and secrecy of elections."
She said voters must be able to freely make their decisions.
"Neither directly nor indirectly should they be put in a situation where they have to explain who they voted for or are pressured into making a choice," the chancellor of justice said. "So the use of colored pencils, photography, specific markings on the notes are all against this principle."

Center party members considering court appeal
Madis said the chancellor's office will analyze the situation more thoroughly and answer questions submitted by Center on Friday morning. The party's Vice-Chairman Marek Jürgenson said a decision would be made afterward.
"After that, we will decide whether to go to court," Jürgenson said, noting that the legal clarity obtained from the court would be important even if the possible solution has no direct effect. "Of course, the court will continue the proceedings until the next municipal elections [in 2025]."
"We have also spoken to our lawyers and there is no reason for us to go to the Public Prosecutor's Office or any other law enforcement agency," he added.
The law treats the violation of election secrecy as a crime only in the context of the Riigikogu, European Parliament and local council elections.

Madise: Difficult for non-voting members to challenge results
An appeal can be lodged with the administrative court within 30 days of confirmation of the council's decision. At the same time, it is important to know who has a right of appeal, or whose rights may have been violated last Sunday.
"If there had been an opponent, it would probably have been easier to take the case to court. But since there was none, it is more complicated," said Madise. "And should it be the case, as the media reported, that the opposition did not take part in the vote at all, it will be difficult for them to dispute anything."
Olavi-Jüri Luik, a lawyer advising the Center Party, believes the absence of another candidate is not relevant when it comes to the right to appeal.
"But whether or not you took part in the vote can play a role," Luik admitted. "One could hypothetically ask whether, in such a situation, the subjective rights of these people could have been infringed if they had chosen not to vote."
However, he said it can be argued that since many Center members were present in the hall, not voting was simply a way of dealing with that situation. "There are points of contention on how to approach this issue," Luik said.
Council chair: Pattern was random

If the court starts to process a possible appeal, the question of how to prove the principle of secrecy was violated will likely arise.
For example, Tallinn City Council Chairman Maris Sild (SDE), said the vote was free and secret. Sild believes the patterns observed by Center to be a coincidence. She said she had not seen all the ballots.
"I have seen a few isolated pictures in the press, but I think it is more of a coincidence," said Sild. "I cannot say what happened at the meetings of the other political factions," she added.
Luik thinks obtaining proof would not be difficult. "Based on the story in the media, it is not plausible that the crosses coincide mathematically with the number of people in the political groups, and the only cross that is not on the edge is a single risk that can be assumed to have been placed by a Center member," the lawyer said.
He also pointed out that several coalition members have admitted to taking pictures of ballot papers.

No consequences for using colored pens
A separate question is what legal consequences would follow a violation of voting secrecy.
Olavi-Jüri Luik highlighted a recent decision made by the Supreme Court which says decision-making bodies must resolve their own internal disputes.
"And in addition to that, we also have a decision of the Supreme Court from a couple of decades ago concerning the same situation in the election of Jüri Mõis, where it was also said that this is a matter of internal relations and the body should be able to resolve these issues itself," said Luik.
Mõis' vote occurred in 1999 when factions used different color pens to mark their ballots. At the time, the opposition parties tried to take the issue to court, but failed.
Madise said the situation will be reviewed in response to Center's letter. She said more than 20 years have passed since the Mõis decision was made.
"We will have to look up the old versions of the law, because all these provisions have been changed quite a lot over time and the jurisdiction of the administrative court has also been changed," Madise said.
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Editor: Urmet Kook, Helen Wright