The new code fails, however, either to address perennial criticisms by successive international election-observation missions, or to incorporate proposals by opposition parties aimed at ensuring a fairer distribution of mandates that might undercut the ruling party's large parliamentary majority.
In addition, the parliament ignored the most crucial recommendations by the Venice Commission, the Council of Europe's expert legal body, to which the draft was submitted for comment. The European Union and the United States have both expressed regret that the new law does not adequately address "perceptions of inequality within the electoral system."
The procedural and logistical shortcomings in Georgia's electoral system were discussed in detail in the final report by the Organization for Security and Cooperation in Europe's (OSCE) Office for Democratic Institutions and Human Rights (ODIHR) Election Observation Mission on the May 2008 Georgian parliamentary elections.
They include campaigning by government officials for the ruling party; inaccurate voter registers that open the door to absentee and multiple voting; errors in the counting and tabulation of ballots; lack of transparency in acting on complaints; and huge discrepancies between the numbers of voters in individual single-mandate constituencies that according to the Venice Commission "undermine the principle of equality of suffrage."
Talking To The Opposition
The ruling United National Movement (EEM) duly embarked in late 2010 on talks with a loose coalition of eight opposition parties on how to amend the law.
But the talks proved acrimonious and unproductive. The EEM refused to accept as a basis for discussion successive written proposals by the "Opposition 8," including their innovative approaches to ensuring that the number of mandates, both proportional and majoritarian, that a party receives corresponds as closely as possibly to the percentage of votes cast for it under the proportional system.
The EEM similarly categorically rejected, on the grounds that it would cost too much, the opposition's demand for the introduction nationwide of biometric passports to preclude multiple voting.
Finally, in late June, two of the eight opposition parties engaged in the talks endorsed new proposals by the EEM that partially addressed some, but not all, the problem issues. Specifically, the EEM proposed increasing the total number of parliament mandates from 150 to 190, of whom 107 would be elected from party lists and the remaining 83 in single-mandate constituencies. President Mikheil Saakashvili subsequently claimed that increase, which he said he personally opposed, constituted a concession to the opposition, although the "Opposition 8" never proposed it.
In lieu of biometric identity documents, the EEM advocated creating a special commission composed of equal numbers of representatives of the authorities, NGOs, and those political parties that accept the EEM proposals to check the accuracy of voter lists to preclude the casting of ballots on behalf of persons deceased or living abroad. And as an inducement to other opposition parties to endorse the new code, any party that did so and subsequently polled at least 5 percent of the vote in the parliamentary elections due in October 2012 would qualify for 1 million laris ($600,000) from the state budget to cover election-related expenses.
Even after other opposition parties agreed to the EEM's proposal, the truncated "Opposition 6" continued to lobby for the introduction of biometric passports, Rustavi-2 reported on August 1. They cited an estimate by the IT company Smartmatic that such passports could be distributed nationwide within four to six months at a cost of some $8 million. By comparison, President Saakashvili's latest mega-project, the planned construction of a new city, Lazika, on Georgia's Black Sea coast, will cost an estimated $900 million over the next 10 years.
The new draft Electoral Code was sent to parliament in September and immediately drew criticism from three watchdog groups. In a joint statement, the International Society for Fair Elections and Democracy; the Georgian Young Lawyers Association; and Transparency International-Georgia affirmed that "the draft does not introduce substantial changes for improving the election environment. In contrast, sometimes articles of the code even worsen the situation or unspecified norms complicate understanding of various formulations."
In that context, they specifically referred to the provision in the new draft permitting regional governors (in addition to their deputies and local mayors) to engage in electioneering. They argued that this runs counter to international demands to reduce the potential for the use by officials of "administrative resources" to ensure a victory for the ruling party's candidates.
The three organizations also objected to the proposed commission to verify the accuracy of voter lists. They said the Civil Registry Agency is both more experienced and better qualified to undertake that task. That objection has been ignored.
They argued that the Georgian Constitution requires that any proposed increase in the total number of parliament deputies be put to a national referendum. They pointed out that such an increase would not per se rectify the discrepancy in the size of individual constituencies that, they said, should be no greater than 15-20 percent.
They deplored the abolition of two measures intended to preclude multiple voting: video surveillance inside polling stations (which the Venice Commission had said some voters may find intimidating) and the use of indelible ink to mark voters' fingers.
Further criticisms focused on less stringent requirements in the new draft code for selecting members of election commissions, and the restrictive procedures for appealing perceived electoral violations.
Venice/ODIHR Decry Omissions
The Venice Commission, whose members visited Tbilisi in late October to discuss the draft with both the authorities and opposition parties, likewise criticized individual provisions of the new code, including some singled out by the three NGOs. A joint Venice Commission/ODIHR assessment made public last month called for revising and clarifying the sections dealing with the use of administrative resources to ensure that "public officials" and "persons holding office" be explicitly prohibited "from directly or indirectly using administrative resources, and from engaging in electoral campaign activities on behalf of any party/candidate."
The joint assessment enumerated several recommendations made earlier by the two organizations that were not addressed in the new draft. It termed residency requirements -- five years for presidential and 10 years for parliamentary candidates -- "overly long." It called for the abolition of the additional requirement that parliamentary candidates speak Georgian fluently, and of the prohibition on persons deemed drug-dependent on running for parliament. (The criteria for determining "dependency" were deemed imprecise.)
The joint assessment further deplored the "lack of effective mechanisms to facilitate the participation of women in elections," noting that Georgia has the lowest percentage (6.5 percent) of female members in the lower chamber of parliament of any OSCE member state.
It also called for the lifting of the "problematic" ban on foreign citizens participating in election campaigns.
Minor Changes Made
During the three successive readings of the bill, the Georgian parliament did make some minor amendments on the basis of the above criticisms. It removed a ban on independent candidates contesting parliament seats in single-mandate constituencies. That restriction was intended to preclude the election of nominally independent candidates aligned with the ruling party (a perennial problem in Azerbaijan).
On December 20, parliament endorsed in the first reading constitutional amendments altering slightly the ratio of proportional to majoritarian mandates from 75:75 to 77:73; guaranteeing any party or election bloc that garners at least 5 percent of the vote six parliament mandates; and amending the existing blanket ban on voting by prisoners to permit persons jailed for less than five years for "minor" offenses to cast ballots.
In the second reading on December 23, they voted to retain the marking of voters' fingers with invisible ink to preclude multiple voting; extended by one month, from July to August 2012, the deadline for verification of voter lists by the new commission; dropped the minimum residency requirement for parliamentary candidates; and endorsed as yet unspecified financial incentives for political parties that succeed in electing women as deputies.
The proposed increase in the number of mandates from 150 to 190 was discussed intensively in early December and then shelved by consensus for reasons that were not spelled out. An opinion poll conducted in September had found that only 8 percent of respondents supported the idea, while 60 percent opposed it, suggesting that if the issue had been put to the required referendum, the electorate would have rejected it.
'Undermining Equality Of Suffrage'
The final version of the law fails, however, to address the most detailed and trenchant criticism contained in the Venice Commission/ODIHR joint assessment: the "formation of electoral districts in a manner that undermines the principle of equality of suffrage," meaning the huge disparity between the number of voters in individual constituencies. The assessment cites as examples the municipalities of Kvareli, where the number of registered voters per single-mandate constituency ranged from 665 to 8,204; Lagodekhi (from 470 to 5,680); Baghdati (from 311 to 4,299); and Kobuleti (from 553 to 14,222).
The joint assessment acknowledges that "some deviation in the number of voters in each electoral district may be unavoidable due to geographic or demographic factors." It notes that the Georgian authorities have "stated the intention to somewhat reduce the discrepancies in the size of districts for future elections." At the same time, it anticipates that "these discrepancies would likely remain excessive throughout the country." Consequently, it recommends that "the code be amended to require single-mandate electoral districts to be of equal or similar voting populations."
Parliament deputy Akaki Minashvili of the EEM was quoted as saying that "we understand the problem" created by disparities in the size of individual constituencies. But he reasoned that "because of the peculiarities of Georgia's administrative [division], it is difficult to ensure constituencies of equal size," and "there is no time" to do so before the parliamentary elections due in October 2012. That argument is disingenuous in light of the two-year delay between the 2008 elections and the launch in late 2010 of talks on amending the election law.
The EEM's reluctance to countenance redistricting may reflect Saakashvili's personal hostility to the idea. In November 2010, and again in April 2011, Saakashvili ruled out depriving individual villages and rural districts of "their" representation in parliament.
The preamble to the Venice Commission/ODIHR joint assessment makes the point that "the extent to which any amendments to the draft code can have a positive impact will ultimately be determined by the political will of state institutions and officials responsible for implementing and upholding" it. Some statements by individual politicians implying that the EEM is justified in seeking to prevent the opposition from coming to power call that political will into question, however. For example, a WikiLeaks cable of March 2008 quotes Giga Bokeria, then an EEM parliament deputy, as telling then-U.S. Ambassador John Tefft that if the opposition found itself empowered to vote down EEM legislative initiatives, political reform would grind to a halt.
Saakashvili too argues that Georgia's "main" opposition forces "come from the past," implying that they would, given the opportunity, suspend or even roll back the process of democratization.
Whatever calculations lay behind the adoption of the new Electoral Code in its final form, its failure to dismantle systemic provisions favoring the current regime elicited negative comment from both the United States and the European Union. The U.S. Embassy issued a statement expressing "regret that there was no agreement on elements of the new code that would have addressed lingering perceptions of inequality within the electoral system."
EU delegation head Philip Dimitrov for his part hailed the inclusion in the new code of some Venice Commission recommendations. At the same time, he said some "provisions...may raise disputes and thus give grounds for questioning the fairness of the elections, and this is not what Georgia needs."