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Justice Chancellor: Relax electoral campaigning restrictions, requirements

Chancellor of Justice Ülle Madise.
Chancellor of Justice Ülle Madise. Source: ERR

Chancellor of Justice Ülle Madise has suggested several changes which could be made to ensure the better functioning of the electoral system in Estonia, particularly with Riigikogu elections, ERR's online news in Estonian reports.

These include removing the ban on outdoor electoral advertising, switching it to a ban on campaigning at polling stations on election day only, ditching the requirement for electoral deposits at the Riigikogu and European Parliament elections, and amending the size of electoral districts, to reflect changing demographics.

Restrictions on political outdoor advertising

Although the chancellor proposed abolishing the outdoor advertising ban, under which parties are forbidden to place campaigning posters on outdoor advertising hoardings around six weeks before an election, in November 2017, it remains in place.

"The ban in force since 2006 has failed to meet its original aim of making campaigns more content-intensive and reducing their costs," she told ERR, noting that outdoor advertising is in any case one of the cheaper options for promotion.

Social media advertising, barely in its infancy in 2006 before the advent of Facebook and Twitter, is also not covered by the ban. The larger parties will spend sums in the millions of euros for all types of campaigning, at Riigikogu elections.

"The ban thus particularly restricts the chances of political parties and candidates with limited budgets. This is especially true in the local elections, because, unlike political parties, election coalitions and individual candidates often cannot make use of more costly advertising channels (especially television)," Madise said.

Prohibition of active campaigning on election day

The Chancellor of Justice also said that, while the ban on active campaigning on election day should continue protect the right to vote, and ensure electoral fidelity, this ban is also no longer up to date.

"Much of today's electoral advertising has gone online, including on social media, which is very difficult, or even impossible or unreasonably resource-intensive, to control," she said.

"As a rule, proof of any potential violation only comes after election day. Even when the candidates themselves do not intend to advertise on election day, previous posts, regardless of their original aim, may also get shared on election day," she noted.

Secondly, an increasing number of people are opting to cast their vote in the advance period, either online or in person, which makes the election day ban even more of a moot point.

"For example, at the 2019 Riigikogu elections, 39 percent of all voters voted on election day, and 61 percent in advance," she said.

"At the recent European elections, 32.5 percent of all voters voted on election day and 67.5 percent voted in advance. For the first time ever, the number of advance and e-voters accounted for two-thirds of all votes cast."

Madise considers banning campaigning on election day at a polling station and its immediate vicinity sufficient. The definition of "vicinity" would need to take into account that many polling stations function in supermarkets and shopping centers, she added.

Justification of electoral party deposits

Madise also believes the requirement for electoral deposits was based on a desire not to fragment the political landscape, and to see strong, stable and economically secure parties as part of the political process.

"To date, it is clear that the risk of excessive fragmentation has not been realized," she noted.

The deposit at the March 3 election stood at €500 per candidate, and for the European elections in May, the figure was €2,700. Thus submitting a full, 125-candidate list at the general election would have cost €62,500, and at the European election, where Estonia is treated as one electoral district, the fee would have been €24,300.

"As a safeguard against the fragmentation of the Riigikogu and the consequent potential for internal political instability, the electoral threshold is effective," she noted.

The threshold is currently 5 percent, meaning a party or candidate with less than 5 percent will get no seats, come what may. This affected Estonia 200 the most at the March 3 election – the party received 4.7 percent of the vote at its first election, thus narrowly missing out on seats.

The current setup favors those parties supported by state funds, granted on the basis of previous electoral success, and not smaller or newer parties. One example of this was the Richness of Life party, founded in 2018, which reported most of its candidates were having to stump up their deposits from their own pockets.

In addition, those parties who don't make the 5 percent threshold lose their deposits, which serves to perpetuate the vicious circle, Madise said.

"In both cases, the result is a narrowing of the political spectrum. This, in turn, diminishes the political playing field and endangers democracy in the longer term," Madise said, adding the Riigikogu should consider abolishing the deposit system.

Electoral district size

Madise also proposes rationalizing the electoral districts to make them equal in terms of numbers of voters. This would reflect a changing demographic since the districts were drawn up following Estonian independence, with a flight to more populous districts, particularly Tallinn and Harju County.

At the 2003 Riiigikogu elections, there were double the number of MPs sent from the largest districts compared with the smallest, she said; by 2019 this proportion had grown to three times the number.

There is no constitutional conflict regarding this disparity, Madise said, but there is a tangible inequality in terms of the way mandates are obtained at the Riigikogu elections (as noted, there is only one electoral district at the European elections).

"Whereas 6.6 percent of the vote in Harju and Rapla Counties was sufficient to get a seat at the 2019 elections, in the smallest district, Lääne Viru County, 20 percent was required," Madise said.

There are 12 electoral districts in Estonia.

"This in itself shouldn't be taken to mean that a successful candidate in Lääne-Viru County needs to be three times more successful and capable than a candidate from Harju and Rapla Counties, but it will undoubtedly influence party decisions in electoral lists, and ranking candidates in district and national lists," she noted.

Parties run lists, in candidate order. Usually, any excess votes from candidates who have already clinched a seat are redistributed to candidates lower on the list, under the d'Hondt system of proportional representation, which Estonia uses in all three levels of election.

Madise also recommends reorganizing all electoral districts on an independent basis, overseen by for instance the Electoral Commission.

Freedom of presentation of political views of private parties

The chancellor also noted that the political advertising ban also extends to business associations and citizens associations.

At the same time, she says, civil society associations may need to be involved in politics and, if necessary, advertise, to fulfill their statutory objectives.

"Consequently, the prohibition on legal person donations limits the right of civil society organizations to freedom of expression," she said.

"A political ban on advertising that extends to civil society organizations may be excessive, and it is difficult to ensure effective compliance with this ban."

Madise pointed out that ahead of the 2015 Riigikogu elections, for instance, an organization for the protection of the family and tradition distributed leaflets which named a candidate and party, asking its public not to vote for other candidates.

"The ERJK (the Political Parties Financing Supervision Committee, a body which supervises the legality of obtaining and spending the finances of political parties-ed.) found this was an impermissible donation, since the advertising was a financial benefit for a particular political party, and the family organization was a legal entity," she said.

"However, the European Court of Human Rights (ECHR) considers the prohibition of distributing leaflets reflecting the views of politicians as contrary to the European Convention on Human Rights," she said.

It also interferes with press freedoms since the private media are predominantly legal entities, she opined.

Thus, such a broad interpretation of a forbidden donation may, according to Madise, lead to the unacceptable consequence of the prohibition of any forms of media coverage of politicians.

"For example, the specific electoral endorsement from a (business daily) Äripäev editorial could be seen as a financial benefit to a political party, or as a donation, since without such a recommendation, a party would need to use advertising to achieve the same effect. However, such a stance would limit the freedom of the press unacceptably," she said.

ERR coverage during election campaigning

The chancellor also took a look at ERR's election campaign coverage over the last five years, and identified an inconsistency between that for political parties which submitted full lists, and for those with smaller or partial lists.

"For example, in the recent European Parliament elections, ERR promised all major political parties coverage in its main broadcasts, regardless of the number of candidates."

"Two-and-a-half months earlier (i.e. at the March 3 general election-ed.), on the other hand, only representatives of political parties who had submitted a full list were allowed to participate in the pre-election TV debates."

The Chancellor of Justice thus requested ERR's board harmonize practices to ensure equal opportunities for all candidates and parties and, at the same time, preserve the journalistic content of electoral debates, which ERR is also legally obliged to do.

The Richness of Life party staged a series of protests outside ERR's TV house ahead of the elections, on the grounds that it was not included in a series of pre-election televised debates. The party ran candidates in every district, but not a full list, on average about two or three candidates per district.

"In principle, however, the law requires that procedures for recording election campaigns be available to all candidate parties and individual candidates in good time, that is, before submitting and registering candidates," she added.

"To this end, ERR's board must abide by the statutory deadlines for the adoption of the electoral campaign recording procedure, and for publicizing the procedure," she said.

Editor: Andrew Whyte

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