Chapter 3. Mechanisms of the Influence of Electoral Legislation on the Representative Nature of Parliament

An analysis of the transformation of the electoral legislation makes it possible to formulate the mechanisms of the influence of electoral legislation on the representative character of the parliament. There are four such mechanisms:

• the first is to choose a legislative model of the electoral system, which, depending on the goals and objectives of the authorities, will be aimed either at improving the accounting for the will of voters, or, conversely, at distorting it;

• the second is aimed at changing (expanding or shrinking) the electorate as a social base of power by introducing additional restrictions on active suffrage or abolishing them;

• the third mechanism works to adjust the conditions for political competition. It consists in introducing or abolishing restrictions on passive suffrage and creating unequal conditions for the struggle between candidates and parties;

• the fourth pursues the goal of changing the personal-representative composition of the parliament by choosing a formula for the distribution of deputyseats, which, under certain legislative conditions, makes it possible to distort the will of the voters.

The choice of the electoral system and its legislative model

The quality of the functioning of representative (electoral) type of people’s representation depends on the model of the electoral system used in the course of elections and determining their results,1 since in the process of the evolution of state building, the electoral systems themselves and the corresponding models of electoral legislation changed from simple to complex, evolving towards creating conditions for the formation of the most representative parliaments. This does not mean that all simple legislative models are bad. Even with their help, it is possible to ensure a completely sufficient level of popular representation. Nevertheless, historical experience shows that the complication of the electoral process in most cases was due to the desire of states to take into account the maximum range of opinions and interests of consolidated social strata when making state-power decisions. It was for this purpose that the main changes in the electoral legislation in the world were directed.

Most of the existing electoral systems belong to one of two groups: majoritarian and proportional.

Majoritarian systems historically emerged first; they are as simple and understandable as possible for the voter. There is one candidate in the electoral district who receives a relative (simple majority), absolute (50% plus one vote) or qualified (specially established percentage) majority of votes. The only seat awarded in the constituency goes to the winning candidate. Majoritarian systems can also be used in multi-member constituencies—in them, several candidates who receive the most votes win.

The main drawback of the majoritarian system is a large loss of votes, since all votes cast for losing candidates are “burned up” and are not taken into account in any way. Moreover, in the majority system, the relative majority of such votes can be much more than half. But even when using the majority system of an absolute majority, losses can reach almost half of those who voted (50% minus one vote). The use of a qualified majority system, which assumes the support of the winning candidate by an overwhelming majority of voters, partly solves this problem, but at the same time, the effectiveness of elections is catastrophically reduced, because getting, for example, 65 or 75% of the votes on the first attempt is a difficult task.

Another disadvantage of majoritarian systems, which is also their advantage, is the personal nature of the elections. Even if all candidates are nominated only by political organizations (for example, parties), this will still not allow adequate reflection in the parliament of the alignment of political forces in society. The choice of voters will be largely determined by the personality of the candidate, and not by his political platform, and not the one who is more effective, but the one who is more popular in a particular constituency will receive votes. The advantage is that such a deputy will be more interested in taking care of the voters and in maintaining the level of his support. The downside is the loss of the element of party spirit and the political program of the elections.

The historical response to the shortcomings of majoritarian electoral systems was the creation of systems of a different type—proportional. Initially, the transition to them was due to the search for ways to restore the value of the opinion of voters whose votes were lost during the majority vote. As we know, under a proportional system, voters do not vote for individual candidates, but for party lists, and seats in parliament are distributed among the lists in proportion to the number of votes received. Thus, the loss of votes in comparison with majoritarian elections is many times reduced, since seats are also distributed among lists with a small number of votes.

But even here, not everything was perfect. Any proportional system, by virtue of its very nature, somewhat distorts its own proportionality. In other words, the outcome of the distribution of mandates is always somewhat different from the outcome of the voting of voters. This can be caused by rather harmless reasons, for example, the impossibility of division without a remainder—no normative act will change the laws of mathematics. Or it may be due to certain hidden properties of the system itself. In different systems, distortions occur to varying degrees and, most importantly, in different directions.

All proportional methods of distribution of seats are divided into two groups: quota methods and divisor methods.

Quota methods involve dividing the total number of votes cast for all lists of candidates admitted to the distribution of mandates by the number of mandates to be distributed. The resulting private, or, in fact, the quota, is the number of votes required to obtain one seat in parliament. The number of votes received by each list of candidates is divided by the received quota, which is the same for all participants. The method described is known as Hare’s quota, after the English barrister Thomas Hare, who proposed it in 1855.2 This is how most mandates are distributed, the presence of a fractional remainder—division without it is extremely unlikely—entails additional distribution, carried out according to different rules. The seats can go either to the lists with the largest fractional balances (largest remainder rule) or to the lists with the largest number of votes per each seat received in the first distribution (largest average rule).3

Other quota methods, such as those proposed by the English lawyer Henry Droop in 1868 or the University of Basel professor Eduard Hagenbach-Bischoff in 1888, differ mainly in the greater number of mandates distributed at the first stage, with a sufficient similarity of the final result.4 However, it is Hare’s quota that is considered one of the most progressive, since distortions of the will of voters with it are minimal, and all actions performed are easily justified mathematically.

When using the divisor methods, the number of votes received by each list of candidates admitted to the distribution of seats is successively divided by an increasing series of numbers, and the number of division operations depends on the number of seats to be distributed. The meaning of all these manipulations is quite simple: to find a divisor that, when dividing by it the number of votes received by each party, would immediately distribute all the mandates. In other words, find an “ideal quota” that gives division without a remainder. And the described mathematical actions are just a search algorithm, the selection of a solution.

In fact, on which series of numbers the division is made, determines external differences between the various methods of divisors. However, with this model, differences in terms of proportionality distortion are much more noticeable. The most famous and one of the most common divisor methods was created by the Belgian researcher Victor d’Hondt in 1882. The method involves dividing by an increasing series of numbers starting from one. According to the researchers, it gives a result that most often does not differ much from Hare’s quota.5

In 1910, the French researcher A. Saint-Laguet proposed using a series of divisors consisting only of odd numbers, which ultimately favors lists of candidates with less voter support. A modified version of this method does not start at 1, but at 1.4, and favors average lists to win. The so-called “Danish method” uses a series of numbers starting at one and increasing by 3 (1, 4, 7, etc.)6 at each step, and works in the favor of less popular lists of candidates.

In addition to strictly majoritarian and proportional electoral systems, systems have been developed and tested that combine elements of the two named groups and are conditionally called transitional or semi-proportional. These include cumulative and limited vote systems, single transferable and single non-transferable vote systems, and various options for preferential or alternative voting.7 The main idea of these systems is an attempt to create a formula that will preserve the advantages of majoritarian or proportional systems, but offset their shortcomings.

Mixed electoral systems, which involve the simultaneous use of two different systems in the formation of parts or chambers of a representative body, deserve special mention. Usually we are talking about a combination of majoritarian and proportional systems. Mixed systems can be divided into two groups: dependent and independent, depending on whether the results of different electoral systems are mutually taken into account when summing up the overall election results. In the unrelated case, as the name implies, such accounting does not occur, and the elements of the mixed system are applied independently of each other. Often in such cases, the positive or negative aspects of the applied formulas have a cumulative effect. So, for example, the independent application of the majoritarian system of relative majority and proportional voting for party lists of candidates allows the favorite party (if there is one in the political arena) to significantly strengthen its result at the expense of candidates who won in majoritarian single-mandate districts.

So, for example, the elections of the State Duma of Russia on September 19, 2021 were formally won by United Russia: according to official data, it won 49.82% of the vote, which provided it with 126 out of 225 seats on party lists. In the majority part of the State Duma, it won 198 out of 225 seats (there is a majority system of relative majority, or First-past-the-post (FPTP)). As a result of the total victory in the majority part, the total number of seats in the United Russia was 324, that is, a constitutional majority. This result is worse than in the 2016 elections, when UR received 54.2% of the votes on party lists and only 343 seats. At the same time, throughout the election campaign, United Russia’s rating remained steadily low and fluctuated, even according to the official sociological service of VTsIOM, at the level of 27–28%.

Such a dissonance between ratings and formal results became possible primarily due to a parallelmixed-membersystem, when, due to the majoritarian part, the leading party can receive an exaggerated (fabricated) majority that exceeds its result on party lists. Majoritarian plurality systems often create a “false majority” by over-representing larger parties (giving a majority of seats to a party that did not receive a majority of the vote), while under-representing smaller parties. Moreover, under this system, a party can win elections with a minority of votes. An example is the election of George W. Bush Jr. in 2000 and Donald Trump in 2016 as presidents of the United States (under this system, all the electoral votes of 48 out of 50 states go to the majoritarian winner in the state under the same FPTP system), although they received fewer votes. In Canada in 2019 and 2021, the Liberal Party won more constituencies, although the Conservative Party was the leader in the number of votes. Regional parties (which have been banned in Russia since 2001) also sometimes receive proportionately more seats than their share of the vote. The losers are always ideological parties that have even support throughout the country, but without dominance in a particular geographical area (in the Russian case, in the absence of falsifications, liberal parties would be the losers from such a system). Generally, the FPTP favors parties that can concentrate their vote in certain constituencies (or, more broadly, in certain geographic areas). On the other hand, parties that cannot concentrate their votes in one region (constituency) usually get a much smaller share of the seats, since they “spend” most of their votes without a chance of a seat. Under such a system, it is difficult for parties without a solid geographic base to win seats. In the 2017 UK general election the Green Party, the Liberal Democrats and the UKIP (United Kingdom Independence Party) won 11% of the vote but only 2% of the seats, and in the 2015 election these three parties received almost a quarter of the votes cast but only 1.5% of the seats. The situation in the majoritarian part can change (turn over) only in the conditions of a sharp drop in the rating of United Russia below the first place and the loss of its administrative resource. This sometimes happens at the local level; for example, in the elections of the Legislative Duma of the Khabarovsk Territory in 2019, United Russia did not win a single majoritarian district.8

It was the parallel mixed-memberelectoral system that became the most important tool for the autocratization of the Russian political regime. In 2003, it allowed United Russia, which received 37.6% of the vote and got less than half of the single-seat members into the Duma, to form a stable majority, and in 2016 and 2021 to maintain a constitutional majority, receiving only about 50% of the votes on party lists.

Mixed-member proportional systems, on the contrary, are designed in such a way as to take into account the results of voting in both systems, thereby ensuring a more accurate reflection of the will of voters in the election results and a greater representativeness of the parliament being formed. For example, the system used in Germany, as well as proposed for introduction in Russia (the proposal did not receive support in the State Duma),9 also includes a majoritarian system of a relative majority and a proportional system with a Hare quota. However, when distributing deputy mandates, the overall results of the party list that has overcome the threshold are considered taking into account the number of single-mandate candidates elected from the same party, and are not summed up with them, as happens in anindependent system. In the distribution of party seats, preference is given to single-mandate party members, as they have received direct support from voters in their constituencies. If, according to the results of the list voting, a party should receive more seats than single-mandate members gave it, the remaining share of seats due to this party is distributed among the “listed” candidates. The resulting distribution result a priori does not allow one party to get more seats in parliament than its list received a percentage of the votes, or than the number of winners nominated from it. Clearly, a certain balance can be achieved in this way between the need to represent political parties and strong, established candidates from the field in parliament, while avoiding a significant distortion of the proportionality of party results.10

Of course, each state chooses for itself that electoral system and its legislative model which seems to it optimal at a certain stage of historical development. But this choice largely predetermines the role, place and significance of parliament in the system of state bodies and in the system of constitutionalism as a whole. The more adequately the parliament reflects the state of society and the correlation of the truly operating forces in it, the higher, respectively, will be this role, place and significance. And vice versa.

In Russia, over the past quarter of a century, the electoral system has changed twice— from parallel mixed-memberto fully proportional and vice versa. Attempts to improve it in the direction of mixed-member proportional were unsuccessful. The results, as they say, are evident. It was the parallel mixed-member electoral system that became the most important tool for the autocratization of the Russian political regime. In 2003, it allowed United Russia, which received 37.6% of the vote and got less than half of the single-mandate members into the Duma, to form a stable majority, and in 2016 and 2021 to maintain a constitutional majority, receiving only about 50% of the votes on party lists.

Changing the electorate (social base of power) by restricting active suffrage.Electoral qualifications

The circle of those who form the parliament (in other words, who can be an elector) is determined by law. The wider this circle, the greater the part of society that can be represented in parliament and involved in the management of state affairs. With the widest possible range, the parliament becomes a larger and more comprehensive model of society. Conversely, the narrower the circle of voters, the fewer real public interests will be represented in parliament. The expansion or narrowing of this circle is carried out through the introduction or abolition of explicit and hidden electoral qualifications—the conditions fixed in the legislation for vesting a person with active and passive suffrage. Moreover, qualifications for candidates (passive suffrage) are always traditionally higher than for voters (active suffrage). They are more related to issues of political competition and therefore will be considered separately. The expansion of the social base of the representative body presupposes the gradual elimination of the majority of electoral qualifications and the transition to universal suffrage.

History of qualifications. Historically, parliament arose as a body of class representation. Therefore, to participate in its formation, it was required to belong to a certain estate, each of which independently determined the procedure for electing its representative. The estate qualification in parliamentary elections is the main one. “Unequal suffrage and estate representation corresponded to the hierarchical social organization of feudal society and were understandable to the population, reflecting the ideas that existed in feudal society about government.”11

The bourgeois revolutions of the 17th-18th centuries radically changed the situation. Proclaiming the principles of freedom and equality, the state itself forced itself to change the system of representation, just because “representatives of the entire people (for all its heterogeneity) could not be elected in the same way… as in social category representation.”12 But so far there had been no talk of truly universal suffrage—a whole set of other qualifications took the place of the social category one. Their gradual abolition meant the inclusion of new population groups in the process of parliament formation. Consider some of the most common qualifications.

Until the 20th century, women were completely and unconditionally disenfranchised in national elections. The patriarchal structure of society assumed that women and men perform different social functions, and, accordingly, they were endowed with different sets of rights and duties. Women were usually in a position of dependence on their father or husband, and therefore their property and civil rights, including voting rights, were often limited by gender. And although some states abandoned this qualification at the end of the 19^th/beginning of the 20th century, the right of women to take part in elections was enshrined as a universal international principle only in 1948 with the adoption of the UN Universal Declaration of Human Rights.13 In the Russian Empire, women’s suffrage was first introduced in 1906 in the Grand Duchy of Finland, which enjoyed wide autonomy and had its own constitution. It was introduced throughout the country in 1917.14 In Portugal, since 1911, women recognized as heads of the family could vote, and individual cases of vesting women with limited suffrage have been known since the 18th century.

Another qualification widely used in the past, but almost not used now, is the property qualification. Charles Louis de Montesquieu wrote about the need to deprive the right to elect those who, due to their excessively low position, are not capable of “having their own will.”15 The property qualification consists in the need to own or possess property for a certain amount or pay a certain amount of taxes to the local or state treasury. According to B. A. Strashun, at the dawn of the constitutional system, this qualification really “made a certain sense given that the proletarians and paupers were completely illiterate,” and the proletarians were forced to work 10–14 hours a day, “which in the most negative way influenced their mental development.”16 The struggle of the working class for their rights, combined with an increase in the level of education of the population, led to the fact that in the 20th century the property qualification was eliminated almost everywhere. Although traces of it still remain in some places. For example, in Luxembourg, bankrupts are deprived of active suffrage. At the same time, even today scholars speak about the dependence of the level of civil liability on the status of a taxpayer and about the independence of a citizen in paying taxes as a manner of his interaction with the state.17 Following the property qualification, the literacy qualification, the requirement to possess a certain level of education, was also abolished. It lost its meaning with the consolidation of the right to universal secondary education and the general increase in the educational level.

To date, only a few qualifications have survived in a relatively common form. They include, firstly, the age limit—the opportunity to take part in elections vests when a citizen reaches a certain age. Traditionally, it will coincide or be close to the age of majority and full legal capacity (18 to 21 years). The qualification aims to allow only those voters who are able to independently evaluate and choose candidates and the programs they offer and be responsible for their actions to participate in the elections. Of course, the higher the age of vesting a person with active suffrage, the greater the amount of knowledge and life experience he will have at the time of the election. The lower the age, the more the voter is exposed to the influence of information technologies and the influence of his relatives and the less independent his choice. On the other hand, this qualification can be used manipulatively to exclude the most active and critical part of society, the youth, from participating in the adoption of state-power decisions.

Another qualification is that of citizenship. It means that in order to participate in elections, a person must be a citizen of the state (in some cases, a certain period of time after naturalization is also required). This qualification is the most common, since a stable political and legal relationship between a person and the state, called citizenship, implies the voter’s interest in a certain political course of the state as a consequence of his choice. At the same time, in the modern world, this qualification is becoming less and less rigid. In itself, a person’s having citizenship of a particular state is no longer considered as a guarantee of his interest in the results of the elections.

In determining the electoral status, what becomes of primary importance is the place of residence, whose well-being the voter must also desire. For example, in the Russian Federation, citizens of foreign states permanently residing in the territory of the corresponding municipality are allowed to participate in local elections and referendums on the basis of international treaties.18 And this is quite logical, since the political course of the state and its fate are not determined at the local level. At this level, issues of local importance are resolved, in which the real residents of administrative units are interested, regardless of what citizenship or nationality they have.

However, the tendency to abolish the qualifications for citizenship in Russia is still in its infancy. The European legislator went much further in this direction, having directly established that a citizen of any of the countries of the European Union, who has a residence permit in another EU country, receives equal voting rights with local residents to participate in municipal and pan-European elections. It can be assumed that the logic here is of the same order: if a person permanently resides in a certain territory, he becomes personally interested in its development and well-being.

Although there are also reverse examples. Namely, the situation with the qualification of citizenship that has developed in Latvia and Estonia.19 After the collapse of the Soviet Union, these Baltic countries, unlike other former Soviet republics, did not implement the so-called “zero option” for granting citizenship, in which all residents of the republics who did not have citizenship of another state automatically received citizenship at their place of residence. So, according to the decision of the Supreme Council of the Republic of Latvia dated Oct. 15, 1991, Latvian citizenship was recognized only for persons who were citizens of the Republic before its accession to the USSR, and for their descendants, in other words, for only two thirds of the population. The remaining third of the population (about 730,000 people), who lived on the territory of Latvia as of July 1, 1991 and did not have citizenship other than the citizenship of the USSR, acquired the unique status of “non-citizens.” These people are not stateless in terms of the Convention on the Reduction of Statelessness, but they are not recognized as citizens of Latvia.20

A similar situation exists in Estonia, where on March 30, 1992 the Citizenship Law of 1938 was recognized as valid. A legal fiction was created that this law did not cease to operate during the entire time of Estonia’s belonging to the USSR. As a result, as in Latvia, only those who had the citizenship of the Republic as of June 16, 1940 and their descendants were recognized as citizens. The rest of the inhabitants of Estonia became “foreigners” with a specific status, which was enshrined in a separate Law “On Aliens,” adopted on July 8, 1993.21

Researchers believe that one of the reasons for the introduction of the institutions of non-citizens in Latvia and foreigners in Estonia was a deliberate desire to exclude part of the population from participating in the formation of national parliaments, since both categories of persons are deprived of voting rights in the first place (with the exception of local elections in Estonia). In fact, this concerned the Russian-speaking population (ethnic Belarusians, Russians, and Jews), who made up the absolute majority of non-citizens, and foreigners. As a result, the Estonian parliament formed in 1992 consisted entirely of ethnic Estonians. It is clear that if the “zero option” were implemented and all residents of the country who were not citizens of other states were recognized as citizens, the outcome of the elections would be completely different, as well as the chosen political course of the state. By now, the majority of foreigners in Estonia have become Estonian or Russian citizens. In Latvia, non-citizens continue to make up a significant proportion of the population, about 12% (approximately 250,000 people), and they are still deprived of the right to vote. True, it should be borne in mind that the state of “non-citizenship” is already their own choice, since Latvia creates enough opportunities for naturalization. Children of non-citizens have recently been granted citizenship by birth, and for adults, the only obstacle is passing a language exam, for which the state provides free preparation. However, non-citizens continue to insist on their right not to know the state language. In addition, the status of non-citizens gives them the opportunity to visa-free crossing of the border with Russia.

So far, Russia has not particularly abused this qualification. It doesn’t officially exist. But minor manipulations, especially when voting outside the country, still take place. For example, Russian missions abroad organize a collective delivery of an “impeccable” electorate to polling stations, but at the same time they can try to refuse to issue a ballot to a “doubtful” electorate, appealing, for example, to the fact that the voter has an “inappropriate” passport. In some countries, the ballot is issued only for foreign passports, in others, only for internal ones. In the 2021 elections, attempts were made to refuse to issue a ballot for voting for a deputy in a single-mandate district to persons registered in Moscow, because “they could vote electronically.” The style of the new version of the Citizenship Law submitted to the Duma is not very friendly to Russian citizens who have opposition views. If the discussion around this law is transformed into certain legislative provisions, we can say that it is used to limit the active suffrage of “dissenters.” But it’s still too early. However, some experts argue that the legislative restriction of political competition in itself is a restriction of active suffrage—such an indirect infringement of the active suffrage through the restriction of the passive one. Perhaps scholars should take a closer look at this balance. So far, this is just a hypothesis.

The residency requirement implies that there is a requirement for admission to the elections of persons who have lived in the territory of a given state or region for a certain time. This is justified by the fact that the candidate must have an interest in the fate of this state, region or locality. For the emergence of such a connection, it is necessary that the person live there, and permanently and for a long time. Then he truly recognizes himself as part of the local community and makes decisions based on this.

Another fairly common qualification is the qualification of having a criminal record or being in prison. In many foreign countries, persons serving sentences in places of deprivation of liberty by a court verdict are limited in their right to vote or deprived of it. In Austria, Belgium, France, Germany, Greece, Italy, Luxembourg, Malta, the Netherlands, Norway, Poland, Romania and Turkey, there are restrictions on prisoners’ electoral rights. In Armenia, Azerbaijan, Bulgaria, Estonia, Georgia, Ireland, Latvia, Liechtenstein, Moldova, the Russian Federation, Slovakia and the United Kingdom, prisoners are denied the right to vote. In accordance with § 45 of the German Criminal Code of 1871, the deprivation of passive suffrage is carried out for a period of 2 to 5 years. Section 22 2 Regulations on the conduct of the elections to the National Council of Austria 1992 (Nationalratswahlordnung 1992) provides for the deprivation of convicts of the right to vote for 6 months. In China, political (including electoral) rights are deprived for life of persons who have committed counter-revolutionary crimes, as well as those sentenced to death and indefinite imprisonment.22

True, in a number of cases we are talking only about crimes for the commission of which punishment in the form of imprisonment is imposed, and the persons who receive such punishment. For example, those convicted of serious crimes cannot vote in most US states; in Italy and Greece, those sentenced to life imprisonment are automatically deprived of the right to vote; in Bulgaria, the Netherlands, Luxembourg, and Slovakia, those sentenced to a term of 10 years or more. In this case, deprivation of the right to vote acts as an additional measure of punishment, not imposed by the court, but established by law. Because of this, responsibility becomes non-personalized, imposed equally on persons who have committed acts that are completely different in subject and degree of public danger.

The qualification of a criminal record and deprivation of liberty has repeatedly become the subject of consideration in the European Court of Human Rights. In its decisions on a number of cases, there is a position according to which it is unacceptable to deprive all persons serving sentences of imprisonment of such an important political right as the right to vote in elections; it is necessary to differentiate responsibility depending on the gravity of the crime committed. According to the logic of the European Court, the right to vote is not a privilege given to a person, which can be deprived of it. The right to vote and be elected is critical to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law. As a consequence, in a modern democratic state there should be a presumption of vesting a person with voting rights. Their limitation is possible, but it should not hinder the free expression of the will of the people in the choice of legislative bodies—it should reflect or not contradict the goal of maintaining the integrity and effectiveness of the electoral process.23

When prosecuted for a crime, a person may also be deprived of voting rights by a court verdict. In this case, deprivation of rights acts as an additional punishment in addition to the main one, which does not always entail deprivation of liberty, and concerns passive suffrage. Often, such a measure of responsibility accompanies crimes committed in the exercise of the powers of a public official. For example, Russian criminal law provides for the possibility of depriving a person of the right to hold certain positions24—if we are talking about an elected position, then in fact there is a deprivation of a passive electoral right. This punishment is directly mentioned among the measures of responsibility for crimes against state power, the interests of state and municipal services, however, depending on the severity and public danger of the act committed, it may be imposed at the discretion of the court in other cases. The fundamental difference between such deprivation of voting rights and the general link to a criminal record and deprivation of liberty lies in the personalized nature of responsibility.

In addition to the above, there are a number of less common qualifications, such as religious (belonging to a particular religion) or moral (having a decent reputation). The moral qualification can be expressed both in specific criteria (for example, in Ecuador, drunkards and vagrants cannot vote), or in terms of evaluative categories (in Pakistan, a candidate for the National Assembly must have a “good moral reputation,” whatever that means).25

As already mentioned, in the world at large the number of electoral qualifications is decreasing from year to year. Only qualifications of age and citizenship remain widespread. The existence of the age limit is logically justified, although its value, as discussed above, can also be a subject of discussion. The fate of the citizenship requirement is gradually becoming less and less certain. If earlier the principle “only citizens vote” was immutable, then today’s international integration processes require more flexibility in this matter. There is an obvious awareness in a number of countries of the importance of the maximum admission of the population to participation in the management of state affairs by granting them the right to participate in the formation of representative bodies of power.

Changing the competitive environment by limiting passive suffrage

The electoral legislation determines not only the circle of holders of active suffrage, but also the circle of those potentially elected and the conditions for the struggle between them. Qualifications are also applied here, but rather of passive suffrage. At the same time, the requirements for candidates in most cases are derived from the requirements for voters—to become a candidate, a person must at least be a voter.

Passive suffrage qualifications are designed to establish minimum criteria for future people’s representatives. For example, in order to hold an elective office, a minimum age requirement is applied, that is, by the time a person has the right to be elected, a person must have reached a certain age. For various public positions, this qualification can range from 18–21 to 35–40 years. For judges of higher courts, the minimum age limit may be higher. Increased age requirements seem to be quite justified, since a certain life experience is needed for conscious and balanced decision-making in power.

The right to be elected is usually denied to persons serving sentences of imprisonment. This prohibition is based on the desire to prevent persons who have committed criminal acts from participating in the management of state affairs. A variation of it is the limitation for the presence of an unexpunged and outstanding conviction. This qualification is much more dangerous, since it can be artificially used to remove the most serious political competitors from the election campaign.

A striking example of the danger of such a qualification is the introduction in Russia, starting in 2006, of numerous amendments to the Federal Law “On Basic Guarantees of Electoral Rights and the Right to Participate in a Referendum of Citizens of the Russian Federation.” At first, the restrictions applied only to Russian citizens who had the citizenship of a foreign state or a residence permit outside the Russian Federation, then to persons convicted of grave and especially grave crimes and having a criminal record. The process sharply escalated in 2012–2014. Anticipating the presence of serious competition for the incumbent president in the next election cycle and using Article 55 of the Constitution, the deputies established a deprivation ofpassive suffrage for those convicted of grave and especially grave crimes, regardless of whether they were detained in places of deprivation of liberty, for a period significantly exceeding the terms of even a suspended sentence. Subsequently, criminal trials were specially initiated, which prevented individual representatives of the opposition from becoming candidates in elections, including presidential ones.26 Thus, the restriction of the passive suffrage automatically led to the restriction of the active one: hundreds of thousands of voters were deprived of their candidate, who eventually called for a boycott of the vote. And although in this particular case we are not talking about parliamentary elections, the norm of the law is quite applicable to them. S. A. Tsyplyaev described this Russian legislative exercise in the following way: “The law not only restricts the passive suffrage of a particular citizen. It violates the rights of the bearer of sovereignty and the only source of power in the Russian Federation—its multinational people (Article 3 of the Constitution). The active suffrage of all citizens is affected—the people are limited in their right to determine whom they need in government bodies. The federal government limits the will of the people as a whole, which is unacceptable.” Later, after the introduction of amendments to the Constitution, this process acquired a creeping and expanding character, when the newly introduced restrictions on passive suffrage received retroactive effect and began to apply to virtually an unlimited circle of people.

Therefore, in introducing any restrictions on passive suffrage, the legislator must always be as careful as possible. When establishing new qualifications, the most thorough study of the issue of their expediency and assessment of potential consequences, taking into account the current state of society, are necessary. For example, the exclusion of persons with a second citizenship from the list of potential candidates may result in the disappearance from parliament of the most educated, successful and economically active citizens with business and intellectual recognition in the world. Thus, any restriction of passive suffrage is fraught with serious distortions of the normal competitive environment in elections and a decrease in the representativeness of parliament. All the more dangerous is the purposeful introduction of qualifications to artificially limit the competitive political environment, which in fact leads to deliberate manipulation of the composition of parliament with all the ensuing consequences.

Another way to influence the pre-election competitive environment is the state of legal regulation on the observance of the principle of equality of candidates and electoral associations. Insufficient or not well-defined normative formalization of equality provisions, as a rule, leads to a distortion of this principle in practice and can nullify any broad entry criteria in the form of low electoral qualifications. It is even more dangerous when veiled benefits and preferences are introduced for certain participants at the legislative level, and for others additional requirements that are difficult to meet. For example, at the start of a campaign, some candidates may be required to collect thousands of expensive signatures or pay an electoral deposit in order to support their nomination, while others need only support a particular political party. As well as overcoming the municipal filter, which is easily feasible for some candidates, but is practically insurmountable for their opposition colleagues. In these cases, equality is violated at the stage of nomination and registration of candidates.

However, the distortion of the principle of equality is also possible at other stages of the election campaign. For example, at the earliest stage, when redrawing constituencies. In the pursuit of obtaining the necessary, but not true, election results, quite absurd situations sometimes happen. In 1812, the American politician and Senator Elbridge Gerry, in an effort to predetermine the results of the next election in his favor, initiated the reorganization of constituencies in such a way as to concentrate his supporters as much as possible and artificially create an advantage for them in most constituencies. The electoral districts he created were so intricately shaped that their map resembled the silhouette of a salamander. Hence the name of this electoral technology, “gerrymandering,” a combination of the name of the senator and the word “salamander.” The technology is also known as selective geography.27 At the same time, being competently applied in the course of holding elections according to the majoritarian electoral system, “gerrymandering” can indeed ensure victory for a candidate who is not the leader of the election race.

The distortion of the principle of equality is also applied later, already during the campaign, when, for example, access to campaign and financial resources is limited. There are many ways that directly or indirectly create more favorable conditions for some campaigners to the detriment of others. All of them, even at first glance insignificant, limit the competition of candidates and influence the outcome of the elections, distorting the will of the voters. A parliament formed under such conditions is unlikely to adequately reflect the alignment of political forces and the state of society and will not be able to represent it qualitatively.

Additionally, we should note electoral legislative models which are characterized by the absence of strict prohibitions on creating unequal conditions for the subjects of the electoral process and responsibility for violating the principle of equality. This also applies to procedural norms specially formulated for the consideration of electoral disputes. Such involuntary or deliberate gaps and defects in the legislation have a significant impact on the reduction of political competition and the resulting distortion of the will of voters. Therefore, the state, which is interested in the effective operation of its representative body, should also strive for the maximum possible observance of the principle of equality of candidates.

It can be confidently stated that the use of qualifications for active and passive electoral rights of citizens is a means of direct influence on the circle of participants in the electoral process. Such actions are fraught with serious political risks for the state, as well as pressure on political competition. All these actions cannot be concealed from voters. Sooner or later they will figure out the manipulative nature of the elections and lose interest and trust in them. Between election cycles, this lack of confidence in elections translates into a lack of interest and a decline in confidence in parliament. The chain reaction of this process is a decrease in respect for the law, a distortion of legal consciousness and, as a result, distrust of the state as a whole.

The other side of such an electoral model is a parliament that is not fully representative, elected under conditions of an artificially limited social power base and unreliable political competition, which, due to the peculiarities of its formation, does not rely on the support of the population and does not express its interests. Naturally, such a parliament is not able to perform the function of a public platform for discussing the most pressing issues of concern to society. As a result, the state in its relations with society constantly runs the risk of finding itself in the situation of a boiling kettle with a sealed lid, not to mention the fact that a parliament that is not quite representative is not interested in controlling the executive branch and cannot play the role of a balancer in the system of state bodies, which inevitably leads to weakening of the state. Are such risks worth the apparent temporary benefits of momentary political victories?

Changing the personal-representative composition of the parliament by choosing a formula for the distribution of deputy mandates

The formula for the distribution of deputy mandates, under certain legislative conditions, makes it possible to distort the will of the voters. Electoral qualifications and ensuring the implementation of the principle of equality of participants in the electoral process are not the only tools by which the state can influence the level of parliamentary representativeness. The rules for counting votes and determining, on the basis of this count, the personal composition of the representative body, remain extremely important in ensuring the greatest correspondence between the results of elections and the will of voters. The task is intended to be solved by various electoral formulas for the distribution of deputy mandates (electoral systems in the narrow sense of the term), which transform the resulting ratio of votes of voters into the ratio of the number of distributed mandates.

Electoral formulas transform the will of citizens at the polling stations into specific election results. Millions or thousands are transformed into specific people, holders of deputy mandates, who have the right to vote in a representative body. It depends on the application of this or that formula how these votes will be distributed, to which parties or personalities they will go. Over the centuries of development of the theory and practice of suffrage, dozens of different formulas have been created. Majority and proportional are the most famous and widespread of them, but there are also many semi-proportional or transitional systems, as well as various options for their combinations. This diversity indicates a long search for the most accurate formula, which, unfortunately, has not yet been invented, but everything has been done to get as close to it as possible.

The search led the researchers to the understanding that the formulas differ not only by different values of errors. Often, they initially contain the vector of these errors—it shows in favor of which election participants the advantage will be created. For example, in proportional party elections, some formulas are more favorable to small and less popular parties, since they enable them to really compete with large and well-known ones, which expands the political spectrum of the future parliament. Other formulas, on the contrary, work in favor of larger parties, increasing their advantage and taking outsiders out of the game. Personal voting by the majoritarian system ensures that the interests of the regions are reflected in the parliament, but may result in insufficient representation of the minority or opposition forces. And finally, the result of applying each formula can be adjusted with a variety of additional tools. For example, such as the electoral threshold, the presence or absence of electoral blocs, the existence of an electoral deposit and other factors that strengthen or weaken political competition.

The combination of different electoral tools, objectified in the electoral legislation, can be used for manipulative purposes to form a certain composition of the parliament. Take, for example, the divisor method created by the Belgian politician Marquis P. G. Imperiali in 1921. In it, a series of integer divisor numbers does not begin with one, as in most other methods, but with two. According to Imperiali himself, the method was specially designed to distort proportionality and involves the transfer of one or more mandates to the leader list at the expense of outsiders. When forming a national parliament consisting of hundreds of deputies, the advantage of several seats may not play a significant role (although it happens in different ways). But regional parliaments often consist of only two or three dozen deputies, and two additional mandates can completely change the entire alignment of forces. Of course, these mandates do not appear out of nowhere, but are subtracted from the result of other lists of candidates. For large parties (first of all, for the leading ones), the increase can be up to 10–15% (and in some cases even more than 20%); for parties of less popularity, the election result worsens by 1.5–2 times, provided the very question of their entry into parliament is not raised.28 Thus, the degree of distortion under certain circumstances can reach a third of the distributed deputy mandates.29

What is meant by certain circumstances? For example, the value of the electoral threshold (barrier), which is the minimum percentage of votes established by law required by the party list of candidates to participate in the proportional distribution of mandates.30 Although the electoral threshold itself cannot be unequivocally attributed to the mechanisms for reducing the representativeness of the parliament. On the contrary, its original function is to form not only a representative, but also an efficient parliament, from participation in the activities of which very small political groups are excluded. The latter, by their presence, at best will not harm, at worst and more likely, they can cause fragmentation and instability of the parliament.31 This is a filter that allows only those political forces that are really significant for society to enter the parliament.

According to its original idea, the electoral threshold should resolve the contradiction between justice (in the form of representation of the maximum proportion of voters) and expediency (in the form of an effectively functioning legislature).32An excessively high threshold upsets this balance towards injustice in the form of a parliament representing the interests of a smaller part of the electorate, and inexpediency with an excessive reduction in the number of factions and a decrease in the fierceness of discussion. The share of votes that are not taken into account when summing up the voting results is significantly increasing. In a certain scenario, this share can reach an almost absolute majority.33 Thus, the effectiveness of the will of citizens as one of the main advantages of the proportional system over the majority system (and especially the majority system of relative majority) is nullified. Raising the electoral threshold can be used as a means of political struggle. With a high threshold, minority parties are deprived of the opportunity to enter the legislative body, and their mandates will be distributed among majoritarians, strengthening the already significant positions of large parties.

But everything is not so simple. While Imperiali’s divider method and selective threshold alone are quite effective, when used in combination, they mutually reinforce each other’s negative effects. Calculations show that if the threshold is completely canceled when elections are held according to the proportional electoral system using the Imperialimethod of divisors, the distortion of the election results is multiplied. The state, it would seem, removes the threshold on the way to the parliament of less popular associations. However, in this scenario, the Imperiali method gives an even greater advantage to the leading list of candidates precisely at the expense of outsiders, who become an additional source of votes redistributed in favor of the favorite. It turns out to be a paradoxical situation. Formally abolishing the electoral threshold, the legislator, using the Imperiali method, creates such conditions for the distribution of mandates, when in order to actually enter the parliament and receive at least one deputy mandate, it is required to receive more votes than to overcome the threshold. The difference between the canceledthreshold and its actual value can be up to several percent in favor of the latter.

An even greater effect of raising the electoral threshold increases when blocking is prohibited. When creating an electoral bloc, several parties or other associations, instead of participating in elections one by one, with separate lists of candidates, form a single list. The distribution of places within such a list is decided by agreement between the block participants. Blocking allows several small parties to consolidate their voters to increase the aggregate result and, if necessary, to overcome the barrier. Accordingly, with the prohibition of the creation of blocks, each list of candidates is forced to act on its own. In this case, the overestimation of the electoral threshold even by a couple of percent becomes a serious problem for them. Votes cast for lists that did not overcome the threshold are lost and are not taken into account in the election results. However, they are taken into account indirectly. One way or another, according to the results of the elections, one hundred percent of the deputy mandates should be distributed, so the votes that did not receive independent representation are automatically distributed among the winning parties in proportion to their result. Ultimately, this leads to a distortion of the results, when a party that does not get half of the votes can get an absolute majority in parliament. Thus, manipulation of the composition of the deputy corps is quite possible by changing the formula for the distribution of deputy mandates. The above examples demonstrate how, by changing literally one or two provisions of the electoral law, it is possible to decide the fate of the parliamentary majority, not let a party into parliament and create a disproportionate advantage for the other.

The described mechanisms, of course, do not cover all the ways in which the electoral legislation influences the composition of the future parliament. The state can regulate the system of public control over elections, the procedure for protecting violated rights, the status of election commissions organizing and conducting elections and counting their results, citizens’ access to information about candidates and parties, and many other aspects of the electoral process. However, consideration of these mechanisms allows us to see global trends in the development of electoral legislation. These trends consist in the fact that in the whole world there is a gradual rejection of obsolete qualifications of active and passive suffrage. The electoral process as a whole is built in such a way as to prevent non-competitive advantages of some participants over others. Finally, the development of electoral formulas continues to follow the path of searching for an ideal model that takes into account the will of voters as much as possible and transforms it into election results adequate to the state of society. But, unfortunately, this approach is not the only one. This is what happens in democracies. Authoritarian regimes are looking for other electoral formulas for their own purposes.

A retrospective review of changes in the Russian electoral legislation as a whole indicates that the course towards reforming the electoral system over the past two decades has been ill-conceived and chaotic (more precisely, situational). This course cannot be called a real reform, since any reform always contains some initially goals, boundaries, parameters and principles. And if the goal in relation to the place and role of the parliament was clearly defined, then the ways to achieve it were not only not strategically calculated, but in general there is a feeling of misunderstanding by the performers of the essence and interconnection of constitutional and legal phenomena. They just didn’t seem to have a holistic vision of the process. As a result, the level of democracy, together with the population’s confidence in the state, has declined sharply in the country. The constitutional principles of democracy and political competition were distorted, the electoral culture, the culture of democratic discussion and the legislative tradition were damaged. Parliamentarism as a system actually collapsed. Or at least it was hit so hard that it would take a lot of time and effort to recover. Special legislative conditions were created for unfree and unfair elections, contrary to international electoral standards. As a result, the representative nature of the parliament was eroded, and the efficiency and quality of lawmaking decreased.

In the course of the transformation of electoral regulation, the legislator sometimes “shied away” from one extreme to another, changing the rules on the go and haphazardly, which led to a radical change in course or to movement in a circle. As already mentioned, this also applies to the choice of the very model of the electoral system, and the sudden return in 2014 of the possibility of voting “against all” in municipal elections. Naturally, provided that such a rule is adopted “on the ground.”34

For almost thirty years of the history of modern Russian elections, the formula for the distribution of deputy mandates in elections to the State Duma has changed twice. First, in 2005, from a mixed independent system (half of the deputies were elected according to the proportional system according to the Hare quota with closed lists and a 5% threshold, with the other half in single-member districts according to the majoritarian system of relative majority), the Duma switched to a fully proportional system (the same closed lists with the Hare quota, but already with a 7% threshold). And in 2014, after only two federal campaigns in 2007 and 2011, the mixed system was returned, although due to the change in a number of related characteristics, such as the turnout threshold, protest voting, the possibility of blocking, etc., it cannot be called identical. Such “jumps” back and forth over a fairly short period of time can have one of two explanations. Perhaps the first transition was made with significant errors, which required a “rollback” to the previous version of the system. However, the results of the 2007 and 2011 elections cannot be called failures for the “party of power.” Or, the second version, and the transition to a new system, and a quick return to the old one were purely situational. This explanation seems to be more reasonable. The transition to a proportional system occurred at about the same time as the tightening of legislation on political parties, which led to a reduction in their number. At the same time, proportional elections are easier to control administratively—they are, so to speak, more centralized. In turn, the reverse transition to a mixed system coincided with a fall in the level of support for the “party of power,” when the required electoral result became easier to achieve using the majority system with its “winner takes all” principle. On the other hand, the level of administrative control over the elections has become sufficient to “release” part of the decisions to the regions relatively painlessly for the result.

Chaos supplemented the regional electoral legislation, which, contrary to the codification claims of the center, introduced its own regulation, sometimes exponentially worsening the implementation of the principle of forming representative bodies as a result of free and fair elections. Thus, in 2005–2008, in a number of Russian regions, the methodology for distributing deputy mandates during elections under the proportional electoral system was changed. If previously the regions traditionally copied the method used in elections to the State Duma, the Hare quota with the rule of the largest remainder, now it has been replaced by various divisor methods. Among them is the Imperiali method. When applied in conditions where there is one clear favorite in the political arena, this method artificially increases the lead of the leading party at the expense of outsider parties. In other words, it purposefully distorts the proportionality of the elections.

In large elective bodies, the redistribution of one or two deputy mandates usually does not have a significant impact on the balance of power between factions. In small assemblies, on the contrary, the transfer of two mandates from one faction to another can fundamentally change the entire political landscape. For example, in the elections to the Moscow City Duma in 2009, according to the Imperiali method, with a 7% electoral threshold,35 only 18 seats were distributed. 15 of them were received by the United Russia party, and 3 more by the Communist Party. With the same ratio of votes received by the parties, the Hare quota with the largest remainder rule at the 5% threshold used in federal elections would not only reduce United Russia’s result to 11 seats, but would also give two seats to Just Russia and the Liberal Democratic Party. That is, in this case, the issue would be, among other things, about the passage of two more political parties into the Duma.

In addition to Moscow, the Imperiali method was adopted in a number of subjects of the Federation, including St. Petersburg, the Republic of Mari El, Moscow and Samara regions.36 Calculations for the next elections following the amendments show that in each subject the change in the electoral formula led to a serious change in the election results.37 With the same ratio of votes, one or two mandates were additionally transferred to United Russia, which provided it with an advantage. To date, of all the regions listed, the Imperiali method in the distribution of deputy mandates has been preserved in the Moscow and Samara regions, despite the adoption of a new edition of regional laws,38 as well as in the Republic of Mari El.