Chapter 1. Defective Democracy. Transformation of the Political Regime and Electoral Legislation in Russia in 1993–1999

It’s true. Political scientists call this time in the history of Russia “defective democracy.” Here is how Grigory Golosov characterizes the period between the collapse of the Soviet Union and the coming to power of Vladimir Putin:

“Having gotten rid of the communist regime in 1991, Russia began not so much to build democracy as to get rid of the former social order. I think that the then head of the Russian state, Boris Yeltsin, simply did not distinguish between these two points, considering the dismantling of the command economy as a task whose accomplishment would eliminate all problems. The leaders of the country were so little interested in political reforms that they did not even bother to hold new parliamentary elections in conditions when the victory of the democratic forces in them would be practically guaranteed.

The political crisis of the fall of 1993 for a decade determined the image of Russia as, to use the nomenclature of political regimes accepted in science, an “imperfect” or “defective” democracy. The defectiveness was manifested in many ways, and above all in the Constitution of 1993, written personally for Yeltsin. Giving its “guarantor” colossal power, it at the same time limited his political responsibility, allowing parliament to take part in the formation of the government. At the same time, the legislative and supervisory powers of Parliament were minimal. This allowed Yeltsin, who lost the parliamentary elections decisively, to actually retain full power, although some concessions to the Duma majority still had to be made. On the whole, this situation suited Yeltsin quite well.

He was not satisfied with the prospect of losing the 1996 presidential election. It is fairly widely known that Yeltsin had no intention of handing over power to Gennady Zyuganov, even if the latter had won the election. If such a scenario had materialized, then democracy in Russia would have suffered a complete collapse even then. This was avoided thanks to the efforts of Yeltsin’s then advisers, who nevertheless brought their president to victory. But the price of these efforts was high. The dirty campaign of 1996 made it possible to preserve democracy, but made it even more defective, discrediting the idea of elections for a long time in the eyes of a huge mass of citizens.”1

Such a long quotation is not accidental. And not everything in it is definitive. But one thing is indisputable—from the not entirely fair stunning or overturning elections of the last Soviet years, when the country opened a window of democratic opportunities and development, today, 30 years later, having gone through electoral authoritarianism, we found ourselves on the verge of a closed dictatorship with a falling economy and a stagnating political system. How did it happen? A fundamental, stormy and, perhaps one of the most difficult segments of Russia’s modern history is filled with a huge number of political and legal nuances. And if at a distance their general outlines look very similar to political scientists and lawyers, then assessments of the details often differ. Just the case when it is impossible to paint the canvas of political history in broad strokes, without details, because it was this period that laid the foundation for a twenty-year-long chess game on the electoral board, which ended with the potentially losing side, unable to cope with the solution of the task set according to existing rules, simply overturning the board by amending the Constitution.

Vladimir Gelman formulated everything the same as Grigory Golosov, but much more succinctly and less emotionally:

1991—refusal to adopt a new Constitution of Russia and hold new elections of government bodies, partial preservation in Russian politics of the “rules of the game” inherited from the Soviet period;

1993—a sharp conflict between the president and parliament, which led to the forceful dissolution of the Congress of People’s Deputies and the Supreme Soviet of Russia. One of the consequences of the conflict was the adoption of a new Constitution, which consolidated the broad powers of the president of the country and contained considerable authoritarian potential;

1996—presidential elections in Russia, during which the incumbent president Boris Yeltsin was re-elected as a result of an unfair campaign, accompanied by a lot of abuse… During the campaign, Yeltsin intended to cancel the elections, dissolve parliament and ban opposition parties, but did not follow through with these plans;

1996–2000—the struggle of various segments of the elite for leadership on the eve of the election of a new president of the country. A complete victory in this struggle for Yeltsin’s successor, Vladimir Putin, who was able to maximize his own power as a result of forcing the loyalty of all significant actors…2

And now let’s see how it all looked legally, and try to translate the events into the language of laws and procedures. And it may turn out that not everything is so unambiguous in the assessments of political scientists. Or that at least some clarification is needed.

Both of the above political scientists claim that in 1991 there was a refusal (deliberate, ill-conceived, frivolous, etc.) to adopt a new Constitution and to hold elections. Is it so? Did Yeltsin have a real opportunity in 1991–1992 to adopt a Constitution and hold elections? Hardly. In drawing this conclusion, we proceed from a number of facts and circumstances.

As is known, being a People’s Deputy of the USSR, Yeltsin was not elected to the Supreme Soviet of the USSR and miraculously entered it only because the future Prosecutor General of Russia Aleksey Kazannik gave up his seat to him. Yeltsin had no prospects in the Union parliament. Therefore, his further movement to power was not at the Union level, but at the Russian level and was based on a tough confrontation with the Kremlin. On May 29, 1990, he, the leader of the opposition interregional deputy group of the Supreme Soviet of the USSR, in the third round of voting by a margin of only four votes (535 votes with a quorum of 531) took the highest post in Russia and became Chairman of the Supreme Soviet of the RSFSR. Further events developed rapidly. On June 12, 1990, the First Congress of People’s Deputies of the RSFSR adopted the Declaration of Independence of Russia, and on June 16, 1990, a resolution was adopted on the formation of the Constitutional Commission to develop a new Constitution of Russia. Again, Yeltsin became the chairman of the commission, and Ruslan Khasbulatov, First Deputy Chairman of the Supreme Soviet of the RSFSR, became his deputy. By the end of 1990/beginning of 1991, the first version of the draft Constitution was ready, but the working group was divided roughly in half on the question of the form of government in Russia. Some supported the variant with a presidential republic modeled on the United States, where the entire government would be formed by the president as head of the executive branch and where votes of no confidence in the government from the parliament would be excluded. Others were in favor of having a parliamentary majority play the main role in appointing the government.3

On February 7, 1991, the Supreme Soviet of the RSFSR adopted Decree No. 581-1 “On measures to ensure the holding of a referendum of the USSR and a referendum of the RSFSR on March 17, 1991” on the preservation of the USSR, which ordered to simultaneously hold another referendum throughout Russia on the need to introduce the post of president of Russia. On March 17, 1991, 69.85% of Russian voters voted for the introduction of the post of president in Russia. On April 24 of the same year, the Supreme Soviet of the RSFSR adopted the laws “On the President of the RSFSR” and on presidential elections. On June 12, 1991, Yeltsin, who received 57.30% of the vote, was elected President and took office on July 10, 1991.4

So Yeltsin was brought to the very top of the political ladder thanks to the Congress and the Supreme Soviet of the RSFSR. He was dependent on the Congress and up to a certain time could not come into conflict with it. For example, he could not offer the people’s deputies to re-elect themselves—to resign and call new elections. He himself did not have the authority to set a referendum or adopt a law on his own election. And after the elections, even after becoming President, he could not adopt a Constitution and a law on elections. By the way, in April 1992 the 6th Congress of People’s Deputies approved the general concept and main provisions of the draft Constitution. And this project was supported by Yeltsin. That is, there was no refusal to adopt the Constitution. The new Russian Constitution was being prepared in the bowels of the existing USSR.

Normal constitutions are not made “quick and dirty.” New elections to new bodies cannot be held according to the old rules. It takes time to develop constitutions and rules. And how can elections be held for bodies that have not yet been constituted? Yeltsin’s taking the risk of doing this in 1993—simultaneously holding a referendum on the Constitution and elections to a new parliament provided for by the yet-to-be-adopted Constitution—was a huge risk and a certain amount of political adventurism. If we compare the two main turning points in the history of our country in the last century, then probably we can have exactly the same claims against the provisional government, which, having declared Russia a republic in February 1917, convened the Constituent Assembly for nine months and prepared a draft Constitution. Russia in 1917 was just as unprepared for the instant adoption of a new Constitution as Russia in 1991. Yeltsin, on the other hand, forced rather than dragged out the adoption of the Constitution. Another issue is that in 1991, in contrast to 1917, a representative body with founding powers was already elected and operating. This body was Soviet in form, but completely different in content and goals. And it was this body, together with the president, that drafted the Constitution. The main issue of democracy, always and everywhere, is a matter of procedure and consensus, not confrontation and political squabbling. Yes, democratic decisions take longer and are more difficult than authoritarian ones. But this is their main advantage—reaching agreement. And it was at this point that the Russia of the 1990s failed to hold within democratic standards. Personal authoritarian tendencies, coupled with the Soviet stereotypes of the sole head of state and the inability of parliamentarians to negotiate, undermined the democratic process.

From April 1992 (the 6th Congress of People’s Deputies of the RSFSR), a tough confrontation between the President and the Congress began.5 The previous one (the 5th Congress) gave him additional powers to carry out economic reform for one year,6 and the 7th Congress in December 1992 not only did not approve the Chairman of the Government proposed by the President, it took these powers away from him.7 The congress adopted a series of amendments to the Constitution, which allowed the congress to resolve any issue within the competence of the Russian Federation, suspend the decisions of the president and government, and exercise other control functions. And then everything went exactly according to the scenario predicted by Stalin back in 1936. Then, speaking at the 8th All-Union Congress of Soviets with a report “On the Draft Constitution of the USSR,” in which it was proposed to introduce the post of a sole president, he noted that this addition was wrong, because “according to the system of our Constitution in the USSR there should not be a single president elected by all the population, on a par with the Supreme Soviet, and able to oppose himself to the Supreme Soviet” Yeltsin put himself in opposition to the Congress.8 One of the authors of this book was personally at that same 7th Congress and watched how, leaving the columned hall of the Grand Kremlin Palace after the deputies limited the powers of the president, he turned to the press, shook his fist and said: “I will never forgive them for this."

Now the President needed a new Constitution more than ever. And he decided to refine it without the Congress. The Decree of May 12, 1993 “On measures to complete the preparation of the new Constitution of the Russian Federation” said: “Overcoming the constitutional crisis and implementing democratic reforms is possible only through the speedy adoption of the Russian Constitution.” And yet, until the fall of 1993, Yeltsin retained his position as chairman of the constitutional commission, but its plenary sessions were chaired by Khasbulatov. By this point, the debate about the Constitution had intensified. Along with the draft of the Supreme Soviet, several more alternative documents were prepared.9 Within the framework of the democratic process, this could not be ignored.

In May 1993, the president published his draft of the Basic Law—rather premature, although it retained the main content and structure of the draft constitutional commission. And in June 1993, Yeltsin convened a constitutional conference. The Supreme Soviet of the Russian Federation in response formed a committee on constitutional legislation. The work of the constitutional meeting continued until the beginning of July, and on July 12, 1993, the draft Constitution was approved by the President of the Russian Federation. Approximately on the same days, the constitutional commission also presented its updated version. Both drafts were sent to the regions for approval, the results of which were unexpected—most of the regions supported the draft of the constitutional commission.10

On September 21, 1993, the President of the Russian Federation issued Decree No. 1400, “On a phased constitutional reform in the Russian Federation,” by which he dissolved the Congress of People’s Deputies and the Supreme Soviet, suspended the country’s Basic Law, and called a referendum on the draft Constitution and elections to a new federal parliament called the Federal Assembly.11 On the night of September 21–22, the Constitutional Court ruled that Decree No. 1400 was inconsistent with the Constitution on 10 points and that its content served as the basis for removing the president from office.12 The confrontation between the president and parliament continued for two weeks. The Supreme Soviet, which was under siege, surrounded by barbed wire around the perimeter, disconnected from all life support systems, was nevertheless supported by the assembly of 62 (out of 89) subjects of the Russian Federation, which, in their decision of September 30, demanded that Decree No. 1400 be cancelled.13 But this demand was not met.

These two weeks were filled to the limit with events and actions on both sides. All this has already been described by many persons many times,14even including a chronology of events by day and hour.15 On October 4, 1993, at 5:00 am, the President signed Decree No. 1578 “On urgent measures to ensure the state of emergency in the city of Moscow.”16 Paragraph 3 of this decree contained the following order: “The commandant of the state of emergency area should immediately take measures to release and unblock objects seized by criminal elements (read: “deputies.”—E. L.).” As a result, direct fire from tanks shelled the parliament building in front of Muscovites, and CNN broadcast this event to the whole world. The duality of power in Russia ended17 in the country’s traditional authoritarian way, which caused great damage to the ideas of democracy both among the general population andamong those in power, caused a split in society, and aggravated the confrontation between the center and the regions. Among other things, the authoritarian distortions of the Constitution adopted in the wake of this shelling were due to the specific features of its revision in the conditions of a country frozen in a daze from what had happened.

The nature of the confrontation was such that it could not but affect subsequent constitutional development: during it, all Soviet representative bodies of power were forcibly dissolved, the activities of the Constitutional Court were suspended, the building of the Supreme Soviet was fired on and seized, and blood was shed. Under the state of emergency in the capital, a presidential decree called for a constitutional referendum, held according to specially established rules that differed from those established by law. In fact, in the fall of 1993, the president of the country carried out a constitutional coup,18 or a constitutional revolution (more often it is called a constitutional crisis, although crises are unlikely to be resolved with the help of tanks). This led to a complete change in the national constitutional paradigm and the destruction of the established constitutional tradition.

At the same time, it must be emphasized once again that a change in the Constitution at that time was an absolute necessity. Yeltsin’s coming to power on a broad democratic wave of free elections and glasnost, in the context of the removal of the “Iron Curtain,” the opening of borders and the beginning of free exchanges, hardly suggested any other way than bringing the country’s Basic Law into line with all the basic philosophical, political and legal principles achieved by mankind. But these values in no way implied the change of the Constitution by the Soviet-party methods of the “iron fist”—the shelling of the democratically elected parliament and the holding of a constitutional referendum according to rules that a priori rejected the principle of the rule of law.

History does not work according to the posing of “what-ifs.” However, when evaluating any historical events, people always ask themselves the question, “what would have happened if…?” Therefore, in the light of the current constitutional crisis, one would like to imagine what an alternative development of our constitutional history could have been if events had developed differently, if the Congress of People’s Deputies of the RSFSR and the president had agreed. Would we then have such or a similar Constitution? It seems that sooner or later, we would have received it. Only much better developed and much more coordinated within society. Of course, it would not have happened instantly. Of course, it would not have been possible without the competition of drafts, without tough parliamentary, public, and scholarly debates. Yes, the communists could have delayed this process for a while. But in any case, the Constitution would have been adopted, and such a path would have been more positive.

Unfortunately, such a development of events was unlikely. It is hard to imagine that a strong and self-confident Congress, elected in free alternative elections, proclaiming the independence of Russia, itself preparing a constitutional reform and supported by the majority (62 out of 89) of the regions on the issue of Presidential Decree No. 1400, would make concessions. It is also hard to imagine that the first president of Russia, who constantly demanded additional powers from the Congress, who did not want to coordinate any of his actions with a representative body of power, who endlessly created “law by decree” and did not tolerate criticism, would have restrained his ambitions. Could they agree? Hardly. They did not want to negotiate, and each considered himself entitled (obliged?) to be incapable of negotiating, despite the desperate efforts of a group of negotiators who tried to reconcile them in a confrontation that had escalated to the extreme and offered a zero option (cancellation of Decree No. 1400 and cancellation of the decision of the Congress to remove the president from office).

But in the end, it happened the way it did: the country fell into the trap of the precedent that had been set for the adoption of a liberal-democratic Constitution by a harsh method from above—this is the special Russian path that we historically got and which, a quarter of a century later, led to another constitutional crisis, but in completely different circumstances. But then, in 1993, all that was left to hope for was free and fair elections, during which a legitimate change of power would be possible.

Electoral legislation and elections 1993–1995

The development of new post-Soviet electoral legislation began within the framework of the constitutional commission of the Supreme Soviet of the RSFSR in December 1992. On the basis of the commission’s draft, the Regulations on the Election of Deputies of the State Duma, approved by Presidential Decree in October 1993, were developed.19 This Decree determined the main parameters of the new elections. A mixed-member parallel electoral system was introduced (in which the results of single-seat elections are not taken into account in determining the results of elections under the proportional system, but are simply added to them), according to which one half of the deputies of the State Duma were elected according to the majoritarian electoral system of relative majority, and the other half according to a proportional system, using the “Hare quota” and the rule of the largest remainder20 in a single federal multi-member district with a threshold in the amount of 5% of valid votes and the presence of the option “against all” on the ballot. The turnout threshold was set at 25% of the number of registered voters. Such a system was consistently used for ten years in the elections of deputies of the State Duma from the 1st to the 4th convocation (elections of 1993, 1995, 1999 and 2003).

The choice of the electoral model was due to the need to solve several problems. The first and foremost of these is the creation of a multi-party political system. That is, the “proportional half” was supposed to stimulate the accelerated formation of political parties (the application of the “Hare quota” with the largest remainder rule favored small parties to some extent). On the other hand, the election of half of the deputies in majoritarian single-mandate constituencies ensured a smooth transition from the old to the new. The 70-year-old stereotype of exclusively majoritarian elections, familiar and understandable to the population, could not be broken at once, so the majority half of the parliament made it possible for voters who did not have experience in choosing between political ideas and programs to elect representatives who enjoyed local support. That is, the system combined the principles of socio-political and territorial representation. However, it was not without a number of significant shortcomings which largely offset its advantages.

Candidates could be nominated by groups of voters and electoral associations. Electoral associations were understood as general federal parties and other associations whose charters provided for participation in elections.21 Parties could create electoral blocs to unite before the elections with each other, as well as with other public structures. Given that the procedure for amending the charters of the organizations was relatively easy, it actually allowed any all-Russian public association to participate in the elections. This did not go well with the idea of new Russian party-building and elections under a proportional system.

In contrast to the Soviet period, the elected deputies were completely free to determine their political affiliation. They could join any party faction or form their own non-partisan deputy group. Such freedom came into conflict with the traditional Soviet idea of voters about a rigidly required deputy mandate that made elected representatives completely dependent on the voters or the party. And although from the point of view of the theory of parliamentarism, this was correct, in practice it caused irritation and bewilderment of the population.

A serious shortcoming of the system was the possibility for the same candidate to simultaneously run both in the list of an electoral association and in a single-mandate constituency. Such single-mandate candidateshad an advantage over the rest, since they were exempted from the obligation to collect signatures in support of their nomination. Researchers cite extremely interesting statistics showing that almost a third of the deputies elected on federal lists were defeated in single-mandate constituencies. Thus, the composition of the representative body turned out to include a huge number of deputies whom the population of certain territories actually refused to trust.22

Another shortcoming of the electoral model was the absence of rules for taking into account the results of protest voting if there was an option “against all” on the ballot. For example, in the 1993 elections, 6.9 million voters (6.5%)23 voted against everyone on party lists. But this did not have any legal consequences. If such legal consequences had been foreseen in advance, the final result of the vote would have been somewhat different.

Apparently, after the events of October 1993, these votes were feared, because the abolition of the legal significance of protest voting in the proportional part of the elections took place literally a month before they were held.

Considering that the 1993 Electoral Regulations were a one-time act and were not intended for subsequent use, the new parliament faced the urgent issue of adopting a package of new electoral laws. Based on the fact that only the basic principles and basic parameters of the electoral system were defined in the Constitution, all the details of the organization and conduct of elections were completely left to federal legislation. Naturally, such a situation initially meant an extremely wide scope for discretion.

To be fair, right up to the third convocation of the Duma, the Parliament did not abuse this discretion too much. The electoral legislation gradually developed, albeit with mistakes and with periodic distortions, even in the conditions of a low electoral culture of power and in the absence of serious electoral theory and practice. Unfortunately, on this damp electoral soil, like toadstools after a rain, dirty electoral techniques began to grow rapidly and develop. In just a few years, Russia, with great enthusiasm, mastered everything that was invented in this area anywhere in the world, and increased the world’s storehouse with its own unique domestic artefacts. Technology was fished out of centuries-old US political history, with the only difference being that America had 200 years to neutralize it or find a legal antidote through trial and error, while we had only one decade to do it all. The faction of the Communist Party of the Russian Federation in the State Duma spared no expense and produced a four-episode educational film on this subject for election headquarters.

According to the transitional provisions of the Constitution, the Duma and the Federation Council of the first convocation were elected for a period of two years (Article 7 of the second section), that is, new parliamentary elections were to be held at the end of 1995, and in 1996, the next presidential elections. The deputies had little time. The views of the president and the various political forces in parliament on the content of the electoral laws did not always coincide. For example, the Yabloko faction initially proposed the creation of a unified electoral code (the Yabloko party defends this position to this day). Nevertheless, during 1994–1995, a system of electoral laws at the federal level was ready.24 It consisted of federal laws “On Basic Guarantees of the Electoral Rights of Citizens of the Russian Federation”25 (hereinafter referred to as the Law “On Basic Guarantees…” of 1994), “On Elections of Deputies of the State Duma of the Federal Assembly of the Russian Federation”26 (hereinafter referred to as the Law “On elections of deputies…” of 1995), the Law “On Elections of the President of the Russian Federation”27 and the Law “On the Procedure for Forming the Federation Council of the Federal Assembly of the Russian Federation.”28

The Law “On Basic Guarantees…” of 1994 was originally conceived and designed as a framework, regulating only general provisions for the Federation and its subjects on holding elections. It enabled regional legislatures to take into account the specifics of the organization of power in the regions, and the requirement that regional legislation comply with the provisions of the Law29 provided it with a central place in the system of normative acts on elections and guaranteed the protection of voting rights in regional and local elections. Such a scheme of legal regulation in a vast federal state was not only justified, but was the only optimal one, especially when it came to regional and municipal elections. Because any detailed unification in federal conditions is fraught with distortions in the course of its adaptation to local conditions.

The need to develop a new law on presidential elections was due to the fact that the Law of the RSFSR of 1991 “On the Election of the President of the RSFSR,”30 according to which the first presidential elections in Russia were held, did not comply with the Constitution adopted in 1993. This law was adopted quite calmly. During its discussion, about 650 amendments were considered, of which about a third were taken into account. The most important of the adopted amendments are:

• lifting the ban on participation in repeat elections for those candidates who did not receive the required number of votes in the previous elections;

• the procedure according to which, when a candidate withdraws during the repeat voting, his place is taken by the candidate with the next largest number of votes. The biggest controversy was the issue of the required number of signatures in support of the nomination of presidential candidates. The proposed number of signatures ranged from 250,000 to 2 million. The State Duma finally settled on 1.5 million, but the Federation Council rejected the law and proposed to reduce this number to 1 million. The Conciliation Commission, and then the State Duma, supported this proposal. In this form, the Law was signed by the President.

The procedure for the formation of the Federation Council

One of the most difficult in terms of consensus was the shortest of all laws that the authors of this book have ever encountered. This is the law on the procedure for the formation of the Federation Council. It contained only four articles, among which only one was of fundamental importance: “Elections of heads of executive bodies of state power of the constituent entities of the Russian Federation must be completed no later than December 1996” (Article 3). What was the problem, and why is it so important? The fact is that the views of the president and parliament on the question of electing governors categorically differed. The president insisted on his right to appoint the heads of the executive authorities of the regions, and the deputies were convinced of the need for their election by the voters. The constitutional norm that the Federation Council is not elected, but formed, and includes two representatives from each subject of the Russian Federation, one from the representative and one from executive bodies of state power (Articles 95, 96), was at that time introduced on the basis of the same goal—the appointment rather than the election of governors. But the first composition of the Federation Council was still elected. The transitional provisions of the Constitution established that the Federation Council of the first convocation was elected for a period of two years in two-mandate majoritarian districts. As a result of lengthy disputes, a compromise was nevertheless reached during the adoption of the law. By law, the chamber consisted of 178 representatives of the subjects of the Federation—the heads of the legislative and executive authorities. Members of the chamber combined deputy duties with their main work, but at least half of them became elected, and at the same time the issue of the election of governors was resolved. As a result, in practice, from the point of view of the effectiveness of the work of the Federation Council, the compromise turned out to be unsuccessful. The governors could not fully work simultaneously in two places. Moreover, gubernatorial elections were gradually reduced to a minimum. Of course, sooner or later the question of changing the procedure for the formation of the Federation Council would arise again. This body, in its current form, does not properly perform the functions that a priori should be performed by a chamber of parliament which represents the subjects in a federal state. And it seems that the best way to form this very important, but so far “sleeping” institution of power is still the formula of the transitional provisions of the Constitution. The Federation Council must be elected by the people. And the election of governors is, of course, also a very important, but still a separate issue of relations between the center and the regions.

The procedure for organizing and holding elections of deputies of the State Duma in 1995–1997

The procedure for organizing and holding elections of deputies of the State Duma was established in a special Federal Law of 1995. The search for a compromise on the final version of this law dragged on until there were rumors about a possible postponement of the elections. The main discussion unfolded about the ratio of proportional and majoritarian parts. The Presidential Administration (PA) considered correct a procedure in which 150 deputies would be elected according to party lists, and 300 in single-mandate constituencies. The head of the Duma group for drafting the law, Viktor Sheinis, insisted on the formula 225:225. The head of the Presidential Administration, Sergei Filatov, argued that the proportional system “tears deputies away from voters,” but in the end he “agreed with Sheinis.”31 The President signed the law literally right before the beginning of the election campaign, on June 21, 1995. And already on July 17, he officially launched the campaign, setting elections to the State Duma for December 17 by his decree. That is, the law was barely passed on time without disrupting the electoral cycle.

In the autumn of 1995, the holding of elections was once again threatened with disruption. Deputies Irina Khakamada and Vyacheslav Nikonov criticized the law. They considered the 5% threshold unfair, which, given the large number of electoral associations, allowed “a maximum of four of them” to participate in the distribution of mandates. In their opinion, the elections would also have a negative impact on the one-round system in majoritarian districts: with a huge number of candidates in the district, the winners would represent an absolute minority of voters, and the majority would have voted against them. The deputies appealed to the Constitutional Court of the Russian Federation. The court ruled32 at the request of the deputies less than a month before the elections, on November 20. It held the content of the law to be within the competence of the legislators, and proposed to discuss the issue of the representative nature of the future Duma after its election.

As a result, the main parameters of this law remained unchanged: a combination of majoritarian and proportional electoral systems, a turnout threshold, a five percent protective threshold, the ability for candidates to simultaneously run on party lists and in single-mandate constituencies, and the nomination of candidates by persons who are not members of the corresponding entity.33 Only the details were corrected, although some of them turned out to be significant in practice. For example, the procedure for nominating and registering lists of candidates was complicated. Unlike the previously required 100,000 signatures of voters, now they needed to collect 200,000, and provided that no more than 7% of the signatures could be collected in one subject of the Federation, and not 15%, as before. For electoral associations, a rule was introduced obliging them to divide party lists into separate regional groups, and the federal part of the list was reduced. All this was supposed to shift the center of the election campaign to the regions and bring the candidates closer to the voters. In addition, candidates from electoral associations nominated in single-member districts were now required to collect 1% of voters’ signatures in support of their nomination, which were added up in favor of registering an electoral association to participate in elections under the proportional system.34 This made it possible to partially mitigate the advantages of candidates nominated by electoral associations, but did not eliminate them completely.

Looking ahead, it should be noted that the results of the parliamentary elections confirmed the correctness of the deputies who applied to the Constitutional Court on the issue that a threshold on the proportional part of the elections and a one-round vote on the majoritarian part would reduce the representative nature of the parliament. With the introduction of a threshold, the gradual withering of political competition and the dying of real party life began. If in the 1995 elections 43 electoral associations were registered and took part in the election campaign (as opposed to 13 in the 1993 elections), in 1999 only 4 associations were able to overcome the threshold. In 1993, political parties for which 8.72% of voters in aggregate voted did not overcome the established threshold; in 1995, the parties that had received a total of 44.82% of the vote did not overcome the threshold.35 That is, the associations that ended up in the Duma received a total of only 50.5% of the votes, and almost half of the voters who participated in the voting under the proportional system voted in vain.

According to some estimates, up to 70% of the votes were lost in the 1995 elections under the majoritarian system.36 This is actually an unacceptable amount, especially given the low turnout threshold. As a result, it turned out that the parliament represented the minimum part of the voters. But on the whole, the elections themselves were more or less fair, except for the dirty electoral technology of administrative interference that was emerging and gradually gaining momentum in the regions. But state fraud was not yet an integral attribute of the electoral system. Yeltsin, who continued to compete with the communists, lost these elections. According to the official results of the voting, the Communist Party of the Russian Federation won a landslide victory both in party lists and in single-mandate constituencies. In total, the Communists got 157 deputy mandates. Three more associations were able to overcome the 5% threshold: the Liberal Democratic Party, Nash Dom Rossiya (NDR), and Yabloko. Another 19 parties got deputies into the parliament by districts. For the president, on the eve of his own elections in 1996, this was very dangerous.

The Elections of 1996

When political scientists assign characteristics to the political regime of Russia during the period of “defective democracy,” one of the central events of this time and proof of the incompleteness of democratic reforms in their assessments are the presidential elections in Russia in 1996, when Boris Yeltsin was re-elected for a second term “in the course of an unfair campaign accompanied by an abundance of abuses” (Vladimir Gelman). Indeed, the 1996 elections are to this day one of the most controversial and mythologized in terms of their results. Until now, there is talk that it was not Yeltsin who won them, but Zyuganov, but… Then a bunch of gossip and a variety of incredible assumptions begin.

For us, the main question is whether these elections were really “dirty” and if so, how dirty? To be honest, from the point of view of today’s practicing electoral lawyers, the “electoral dirt” of 1996 seems like child’s play to us. Judge for yourself, here are the facts. With a signature collection rate of one million, 78 initiative groups were registered to nominate presidential candidates. The requirement of 1,000,000 voter signatures was met by 16 groups. The Central Election Commission (CEC) registered nine candidates, and seven more were rejected. Six of them appealed the refusal of the CEC to the Supreme Court, and the court ruled to register two more. Can you imagine this today? From all points of view: the procedures for collecting signatures, checking signature sheets, registering nine candidates with the CEC, the possibility of judicial appeal with the prospect of winning? Of course not. But, apparently, this is what distinguishes electoral authoritarianism from defective democracy.

Yeltsin’s final decision to run was greatly influenced by the results of the parliamentary elections. “As long as there is a threat of a clash between ‘reds’ and ‘whites,’ my human and civic duty, my duty as a politician is to seek the consolidation of all the healthy forces of society and prevent possible upheavals up to civil war,” the president said at an event on the official start of his election campaign in Yekaterinburg. At that time, his rating, according to Russian Public Opinion Research Center (VTsIOM) polls, was 8.4%, and 15.8% were ready to vote for Gennady Zyuganov, whose party had just won the elections to the State Duma. Boris Yeltsin’s rating exceeded the level of support for Gennady Zyuganov only a month before the first round of elections. In the first round, Yeltsin won 35.28% of the vote across the country, ahead of Zyuganov by only 3.25%. As a result, according to official data from the CEC, as a result of the second round of elections, Yeltsin won 53.8% of the vote, and his opponent only 40.3% (4.8% voted against all).37 Another question arises: is this possible in a fairly short election campaign? Theoretically, it is possible, subject to a huge concentration of forces, means and techniques, including without the use of administrative resources.

But in Russia, the administrative resource was at work. But it was not centralized. The governors, realizing the vagueness of the prospects for the head of state in the elections, were in no hurry to declare their support for him. Many, both the heads of the so-called red belt regions and the pro-Yeltsin leaders of the subjects of the federation, waited. They got involved in the work only at the finish line, when they saw the ratings and cheated each in their own way, due to their own ideas about what should be done without a command from above. But there was no question of any rewriting of the protocols or making adjustments to the State Automated System (GAS) “Vybory” (“Elections”).However the State Automated System “Vybory” itself in 1996 was in its infancy. The decision to establish it was made in mid-1994,38 and it began to function in full only in 1997. The administrative resource worked, for example, at the stage of collecting signatures, when, according to his aides, complaints were sent to the president that without a signature “for Yeltsin” they refused to issue salaries and threatened with troubles up to and including dismissal. Administrative and financial resources worked at full capacity in the media. Coverage of Yeltsin’s campaign was many times greater than coverage of Zyuganov’s campaign. The authorities did not disdain administrative bribery of voters either. Among the presidential decrees signed during the campaign, there are very eloquent documents: decrees “On measures to strengthen state support for science and higher educational institutions of the Russian Federation,” “On state support for citizens in the construction and purchase of housing”, “On measures to ensure the timely payment of wage payments from budgets of all levels, pensions and other social payments.” On June 15, the day of silence, when campaigning is prohibited, Boris Yeltsin presented state awards and met with the head of the CEC, Nikolai Ryabov, and Patriarch Aleksey II, with full television coverage.

Zyuganov, as the leader of a faction in the Duma, also used his administrative resources. For example, on March 15, 1996, the Duma adopted two very original resolutions: one confirmed the validity of the results of the 1991 referendum on the preservation of the USSR, the other actually cancelled the Belovezhskaya Accords and the creation of the CIS.39 It was clear pre-election public relations through abuse of power. Later, the Chairman of the Duma, Gennady Seleznev, had to justify himself and insist on the adoption of another special resolution, which emphasized that the documents dated March 15, 1996 “reflect the civil and political position of the deputies and do not affect the stability of the legal system and Russia’s international obligations.”40

“It is a fact that there were manipulations, of course, it is just that everything depends on the assessment of their scale. I doubt that the falsifications amounted to10 million votes (the difference between the president and the leader of the Communist Party in the second round),” ArkadiyLyubarev, an expert on the 1996 elections, assesses the 1996 situation. “The letter of the law was clearly observed,” political scientist Dmitry Oreshkin confirms the conclusions of his colleague. “It never occurred to anyone to remove candidates from the elections, no one closed the pro-Zyuganov publications—the newspaper Zavtra went on publishing remarkably well. In the second round, the increase in the president’s votes occurred mainly due to the candidates who entered the top five. In total, Yavlinsky, Lebed and Zhirinovsky got 27%. And although only General Lebed directly declared support for Yeltsin, they were all pronounced anti-communists. In fact, in 1996, everything was so obvious that Zyuganov found the courage to congratulate Yeltsin on his victory.”41

Another question is that after the bright and competitive elections of 1989 and 1995, any electoral violations, and especially violations of the president, against whom the people had accumulated many complaints, were subject to heightened attention. None of them remained without discussion and appraisal. The finely tuned public interest microscope was merciless. The sharp struggle between the “blue and red” regions (as the results of the elections on the night after the vote were indicated on the CEC map) only sharpened the settings of this microscope. Therefore, the assertion that “the 1996 campaign made it possible to preserve democracy, but made it even more defective” is not entirely true. Vice versa. Among other things, it had pronounced positive consequences for clarifying the types of violations of the electoral legislation and responsibility for them. Yes, of course, the aftertaste from this campaign was, frankly, “not very good.” There was an unpleasant feeling of “broken hands” from how the huge media and financial resources were instantly concentrated to solve the issue of preventing a communist revenge in a country with serious socio-economic problems. In fact, the situation in 1993, the shelling of the Parliament and the President’s dictatorial handling of the Constitution, caused much more damage to democracy and the rule of law than these elections. The fight against evil by methods of evil, even in the name of the most benevolent goals, does not give rise to order, goodness, or democracy, but releases from the bottle genies with whom we are still fighting.

The 1997 versions of the electoral laws

After the turbulent electoral upheavals of 1995–1996, the next step in reforming Russian electoral legislation was the adoption in 1997 of a new version of the Law “On Basic Guarantees of electoral rights and the right to participate in a referendum of citizens of the Russian Federation”42 (hereinafter referred to as the Law “On Basic Guarantees…” of 1997), which now, in addition to the norms of electoral law, contained the rules for holding referendums. The reason for this unification was the adoption on October 10, 1995 of the Federal Constitutional Law “On the referendum in the Russian Federation,” which revealed the similarity of the procedures of these two institutions of direct democracy. A feature of the new version of the Law was the change in the correlation between federal and regional legislation in the regulation of electoral processes. “The law began to gradually lose the features of a framework, and the legal regulation of the formation of state authorities of the constituent subjects of the Russian Federation and local governments actually began to move more and more into the sphere of responsibility of the federal legislator.”43

The scope of the Law “On Basic Guarantees…” increased almost fivefold due to the inclusion in it of many details of the legal regulation of the procedure for organizing and holding elections which were previously under the jurisdiction of the subjects of the Federation. That is, there was clearly excessive federal interference in the sphere of joint jurisdiction of the Federation and the subjects. Additionally, the wording of the law was strengthened, requiring strict compliance with it of all other, both federal and regional electoral normative legal acts.44 With regard to federal laws, a legal paradox immediately arose, since, firstly, they have the same legal force as this law, and, secondly, a general law, in comparison with a special one, in any case cannot be considered a priority in regulating specific legal relations. Scholars immediately sounded the alarm. “The provision on the correspondence of some federal laws standing on the same scale in the hierarchy of legal acts to another, more important federal law does not meet the basic generally recognized principles of law.”45 “The Constitution of the Russian Federation does not allow the establishment of a higher legal force of one federal law in relation to another federal law,” which was confirmed by the decisions of the Constitutional Court of the Russian Federation,46it was stated.

Nevertheless, it was still hardly possible to speak of a clearly emerging trend towards deliberate centralization and unification of the electoral legislation. Deliberate federal intervention and the consistent curtailment of federalism was the destiny of another president and another parliament. And then, in 1999, the State Duma was elected in free alternative elections and was not under the iron heel of the Presidential Administration, as happened later. Yes, and for the Administration—the main spokesman for the goals and objectives of presidential power—such a question was not yet on the agenda. Perhaps, if everything had remained so, most likely, a federal balance would have been gradually achieved again in regulating the procedure for organizing and holding elections. But this “gradually” was not destined to come true in the history of Russian electoral legislation. A few years later, the trend changed dramatically.

Responsibility for violations of the electoral legislation. One feature of the 1997 edition of the electoral laws should be emphasized in particular. We are talking about the appearance in the Law “On Basic Guarantees…” of a large and very clear list of types of violations of citizens’ electoral rights (Article 65). As is well known, no rules, procedures or rights can really work in the absence of obligations to comply with them and responsibility for their violation. Without duties and responsibilities, any legal prescription remains a declaration on paper. Of course, law enforcement and judicial authorities also do not always immediately begin to apply the rules that introduce liability for new types of offenses—they need some time for this. But if duties and responsibilities are not provided for by law at all, then there can be no talk of any law enforcement.

What is so remarkable about this list? Firstly, it is clearly formed on the basis of the real practice of several election campaigns and a serious understanding of a variety of dirty techniques used in elections (remember, we wrote about a four-episode film shot by the Communist Party faction?). Secondly, the Duma Committee on Constitutional Legislation, which was responsible for electoral legislation and headed in that convocation by a representative of that faction, did a very good job. The wording of the list is extremely accurate and absolutely up to date. This is especially noticeable in comparison with the short and incomprehensible analogous article 34 of the same law in the previous edition.47Thirdly, the law specifically emphasized that “officials of state bodies who, on the recommendation of election commissions, did not verify information about violations of this Federal Law, federal constitutional laws, other federal laws, laws of the constituent entities of the Russian Federation, and charters of municipalities and did not adopt measures to suppress them, bear criminal, administrative or other liability in accordance with federal laws.” That is, additional guarantees are given to protect participants in the electoral process from the arbitrariness of the state. Fourthly, a year before the appearance of this list of violations in the Criminal Code, in the chapter “Crimes against the constitutional rights and freedoms of the individual and citizen,” two articles on liability for violations of electoral rights also appeared—article 141, “Obstruction of the exercise of electoral rights or the work of election commissions,” and Article 142, “Falsification of election documents, referendum documents or incorrect counting of votes” with a maximum liability for these violations of 5 years and 4 years in prison, respectively. These two articles correlate well with the list, since the formula of Article 141 “obstructing a citizen from exercising his electoral rights” needs to be deciphered, and the list harmoniously supplements and specifies it. That is, the two laws in the pair are exceptionally good and convenient for law enforcers.

We specifically include this list here, because Article 65 of the Law “On Basic Guarantees…” was not destined to live long. Such articles cannot exist under conditions of electoral authoritarianism, and one day we will again urgently need this list as part of the program for the restoration of democratic elections.

Types of violations of the electoral rights of citizens:

• obstruction by violence, deceit, threats, forgery or in any other way of the free exercise by a citizen of the right to elect and be elected;

• using the advantage of official or work-related position for the purpose of election;

• coercing or preventing citizens from signing in support of candidates or engaging in signature forgery;

• bribing voters under the guise of charitable activities, as well as the production and distribution of commercial and other advertising for election purposes;

• untimely formation and failure to clarify information about registered voters;

• spreading deliberately false information about candidates or committing other actions discrediting their honor and dignity;

• violation of the rights of members of election commissions, including those with an advisory vote, of observers, including foreign ones, of trusted representatives of candidates, of electoral associations, and of the media, including the right to receive information and copies of election documents in a timely manner;

• violation of the rules for conducting pre-election campaigning, including campaigning on the day preceding voting day and on voting day;

• failure to create conditions for holding mass events, when such an obligation is imposed on them by law;

• violation of the rules for financing the election campaign, including the delay in the transfer of funds to election commissions and candidates;

• concealment of the remainder of the ballots or non-production of additional ones;

• obstruction or unlawful interference in the work of election commissions;

• obstruction of voting at polling stations;

• violation of the secrecy of the vote;

• forcing voters to vote against their own choice;

• forgery of electoral documents, drawing up and issuance of deliberately false documents;

• carrying out deliberately incorrect counting of votes or establishing of the results of elections;

• non-provision or non-publication of information about the results of voting contrary to the duties assigned to them;

• violation of the right of citizens to familiarize themselves with the list of voters;

• issuance of ballot papers to citizens in order to give them the opportunity to vote for other persons or vote more than once in the course of the same vote, or the issuance (transfer) of completed ballot papers to citizens;

• non-provision or non-publication of reports on the expenditure of funds for the preparation and conduct of elections, financial reports of election funds and financial reports on the expenditure of budgetary funds allocated for the campaign;

• refusal by employers to grant statutory leave to participate in elections.

Clear boundaries of lawful behavior are one of the most important foundations of the rule of law. Violations of the electoral rights of citizens, in turn, are among the most dangerous and entail particularly grave consequences for the state and society among all violations of human rights. Therefore, a detailed and understandable list of such violations, based on electoral theory and practice, is essential to prevent them.

The situation around the elections in 1998–1999

Along with the gradual transformation of the electoral legislation at the end of the ‘90s, many other electoral and near-electoral events took place in the country. Without taking them into account, it is hardly possible to objectively evaluate any changes, since their reasons were most often political, and not purely legal.

Thus the president quickly became “cramped” within the framework of the Constitution he himself adopted. Therefore, having won the 1996 elections, he began the extra-constitutional expansion of powers much more confidently. This was done in three main ways:

• by presidential decrees;

• by federal laws (less often, since during this period the parliament was still elected and functioned in conditions of intense political competition);

• by acts of the Constitutional Court, including interpretations of the Constitution.

Not a single one of the presidential decrees challenged in the Constitutional Court (and there were quite a few of them) was found to be inconsistent with the Constitution. After the court was forcibly suspended during the crisis of 1993 and the Federal Law “On the Constitutional Court of the Russian Federation” was adopted, the supreme body of constitutional control ceased to be in opposition to the executive branch; the judges did not give a single reason to really doubt their loyalty to the president. Up to the point that in August 1995, after long disputes, by a majority of one vote, they nevertheless recognized as constitutional all decrees on “restoring constitutional order” on the territory of Chechnya.

Therefore, when in 1998, in connection with leaked rumors about the president’s desire to run for a third term, a group of State Duma deputies48 asked the court to clarify whether the first presidential term of Boris Yeltsin, which began in 1991, two years before the adoption of the current Constitution of the Russian Federation, should be counted, and whether he would be able to run again, practically no one in the Kremlin doubted the positive decision of the court. However, the decision of the court in the case of the “third term,” issued on November 5, 1998, suddenly turned out to be truly sensational. The court recognized the current term of Boris Yeltsin’s presidency as the second, thus banning him from running in 2000, in accordance with part 3 of Article 81 of the Constitution. Among the arguments of the judges was, in particular, the following: the new Constitution did not interrupt the first term of Boris Yeltsin, and in the elections in 1996, voters and the president himself proceeded from the fact that he was elected for a second consecutive term.49The State Duma was represented at the trial by the well-known deputy (then still from “Yabloko”) Elena Mizulina, who stated that the consideration of the issue in the Supreme Court is “important as a precedent: If we leave in the constitution a norm under which the president can have more than two terms in a row, next time, we will get a dictatorship. And following a dictatorship, as shown by world experience, a revolutionary situation follows.”

After the financial crisis in August 1998, the deputies twice rejected the candidacy of Viktor Chernomyrdin submitted by Boris Yeltsin for the post of prime minister. If they did it for the third time, then in accordance with article 111, part 4 of the Constitution, the president would have to dissolve the chamber, and extraordinary Duma elections could result in even greater political losses for him: in the background of the economic crisis, the popularity of the opposition (mainly the Communist Party of the RF, the KPRF) significantly increased, and the president’s rating, on the contrary, decreased rapidly. The President decided not to risk it and chose a compromise figure, Evgeniy Primakov, who was approved by the State Duma on the first vote.

Primakov headed the government for only 243 days. In May 1999, Yeltsin dismissed the government and replaced Primakov with Sergei Stepashin. Stepashin worked in this position for 82 days. After the terrorist attack in Budennovsk and the passing of a partial vote of no confidence in the government by the State Duma, Yeltsin dismissed him and he was replaced by Vladimir Putin. The change of prime ministers in Russia in 1998–1999 resembled the change by capricious monarchs of their favorites. The Chernomyrdin-Kirienko-Primakov-Stepashin-Putin chain is made up of so many different people, and the changes happened so quickly (five prime ministers in a year and a half) that few people understood the nature of the events taking place. The main reason for the leap-frogging of the prime ministers was, it seems, the search for Yeltsin’s successor, who could ensure the safety of the members of the “family,” including himself, and the protection of their economic interests.

At the same time, the standard of living of the population fell: the devaluation of the ruble led to a decrease in real income of almost 20%. In September 1999, a series of terrorist attacks took place (in Buynaksk, Moscow, and Volgodonsk), claiming 307 lives, and 1,700 people were injured in various degrees of severity. In Moscow, in Maryino, stocks of explosives sufficient for the destruction of several residential buildings were found. The feeling of instability, the decrease in income, and the loss of feelings of security greatly affected the voters.

In 1999, the KPRF faction in the Duma initiated the impeachment procedure (otreshenie ot vlasti) of Yeltsin on five charges: the breakup of the USSR; the shelling of the White House in 1993; the unleashing of the war in Chechnya; the destruction of the army; and the genocide of the Russian people. None of the accusations received the necessary 300 votes to reach a decision, as the Yabloko faction, which initiated this procedure together with the communists, left the meeting hall and refused to take part in the voting.

The situation in the regions that prevailed at the end of the ‘90s could be described by the term “authoritarian decentralization.”50 It was at this time that the metaphor “regional feudalism” appeared on the pages of newspapers—albeit not very accurate, but implying both a significant level of decentralization and the authoritarian nature of the overwhelming majority of regional regimes. Yeltsin himself retained power in 1996, but the fate of the governors appointed by him was different. In 1996–1997, former communist functionaries and “strong managers” came to power in many regions, who did not depend on the center and who, once they got power, did not intend to cede it. In 1998, when the economic crisis took away Yeltsin’s hope for a political opportunity to “reset” his previous presidential terms, a coalition of Evgeniy Primakov, Yuri Luzhkov and regional bosses was formed, ready to enter the struggle for power. An important feature of the regional authoritarian regimes of the second half of the ‘90s was that, regardless of their origin, they existed in considerable isolation from the federal authorities. The governors demonstrated external loyalty to the Center, but at the same time they proceeded from the fact that in exchange for loyalty, Moscow must completely refrain from interfering in their “internal” affairs.

This is clearly evidenced by the so-called intra-federal treaties, which by 2000 had accumulated in a thick volume and by which, in addition to the Constitution, powers were individually distributed between the center and individual regions. In 1998–1999 alone, the Ministry of Justice registered about fifty thousand laws of the subjects of the Federation, a third of which contradicted the Federal Basic Law. In turn, during this period, the prosecutor’s office brought protests against 1,400 laws of the subjects of the Federation due to their non-compliance with federal legislation.

The 1999 version of the electoral laws

By this time, the parliamentary parties, it seems, had finally fully realized that they were admitted to the “holy of holies” and were capable of forming election rules for themselves. Because, as already mentioned, it is the electoral system and its embodiment in the electoral legislation that determine the procedure for the formation of a certain authorized majority, which gets the opportunity to establish mandatory rules for everyone, including the rules for how this majority should arise, with the condition that the majority created by this method again determines the method of formation of the next majority. That is why most often amendments to election laws are adopted at the end of the next election cycle, when parliamentarians are about to go to new elections and they estimate their chances of victory. The temptation to “twist” the law, based on the current situation, is huge. Coping with this temptation is extremely difficult. Only a serious democratic culture and a system of checks and balances can overcome it. But Russia is far from both of those. It was far from them then, and even further now.

So, in June 1999, half a year before the next elections to the State Duma, a new version of the Law “On Elections of Deputies of the State Duma of the Federal Assembly of the Russian Federation” was again adopted51 (hereinafter, the Law “On Elections of Deputies…” of 1999). In this version, the mixed electoral formula and other main features of the existing electoral system were still preserved.52The innovations only touched on its individual provisions, but, as is known, “the devil is in the details.” Among the amendments, the most significant are the following.

1. The number of candidates in the federal part of the party lists was increased to 18 people. For the parties, the number of these so-called “steam locomotives” was of great importance, since if the party overcame the threshold, the federal part of the list automatically received parliamentary mandates without additional distribution. These seats could also be sold illegally, providing the electoral association with additional unaccounted resources for campaigning.

2. Electoral practice led to the fact that artificial barriers created by Duma parties for their political competitors could, under certain circumstances, lead to an electoral collapse— if only one party overcame the 5% threshold, the elections could not be considered valid. Therefore, in the fall of 1998, the Constitutional Court of the Russian Federation considered a number of provisions of the Law “On Elections of Deputies…” of 1995 as a matter of abstract normative control at the request of the Saratov Regional Duma. Among them was the norm about not allowing to the lists of candidates those who did not overcome the threshold to the distribution of parliamentary mandates. The Constitutional Court came to the conclusion that the threshold itself did not infringe on the electoral rights of citizens and did not violate the equality of electoral associations. It corresponded to the Constitution, the Convention on the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights. At the same time, the Court established that one and the same size threshold under various constitutionally significant legal conditions can be both permissible and excessive. The mechanism for the distribution of mandates established by the Law “On the Elections of Deputies…”of 1999 assumed that the mandates not obtained by lists that did not overcome the threshold are actually distributed among those who have overcome it. However, if all lists that overcome the threshold do not receive an absolute majority of voters (50% plus one vote), the use of the threshold is inadmissible, as it contradicts the purpose of proportional elections. In addition, if the threshold will be overcome by only one electoral association (even if it received an absolute majority of votes), it will receive a monopoly on power, which contradicts the democratic principles of political diversity and multipartyism. Therefore, the law must contain provisions for a “floating” threshold, and regardless of the results of the voting, no less than two electoral associations which had received a total of more than 50% of the votes of the voters who took part in the voting must be allowed to distribute parliamentary mandates.

Based on this decision of the Constitutional Court of the Russian Federation,53 it was established that the 5% threshold was “floating,” that is, even if the threshold was overcome by only one electoral association, the following association based on the number of votes was allowed to distribute mandates (even if it didn’t reach 5%). In any case, at least 50% of the votes of the citizens who came to the elections must have been cast for associations allowed to distribute mandates.54

Thus, at least the artificiality and ineffectiveness of the threshold was somehow smoothed out, which, among other things, led to the disregard of a huge number of voters’ votes, to the formation of the parliament by an absolute minority and to the loss of its representative character (taking into account the turnout threshold of 25% from the total list of voters, only 12.5% of the electoral body was sufficient to form half of the composition of the Duma).

3. The institution of electoral deposit or pledge55 was introduced (a monetary deposit by a candidate or party), which allowed the registration of candidates and federal lists without the collection of signatures of voters. For many candidates for deputy mandates, this significantly simplified the registration procedure, as the actual collection of signatures required no less financial cost, but at the same time, it was not possible to guarantee the registration of the candidate. The pledge could be used as an “insurance option”: the candidate or the association could simultaneously provide signatures in their support and pay the election pledge. In this case, if the registration was based on signatures, the pledge was returned. As a result, new or less developed electoral associations had an additional opportunity to participate in the pre-election struggle. As a result, the extremely controversial institution of the pledge, which was essentially a hidden property qualification, played a positive role in strengthening political competition and became a counterweight to the government’s manipulations concerning establishing the authenticity of voters’ signatures. During the 1999 elections, 16 of 26 electoral associations were registered on the basis of a pledge56.

4. In addition, an amendment was introduced in the revised version aimed at limiting the circle of collective subjects of the electoral process, which was sufficiently wide at that time. An electoral association was now treated only as “a general Russian political public association.” Moreover, its creation or introduction of changes to the statute of a public-political nature should have been registered no less than a year before the day of the vote57.

Together with the electoral threshold, this rule “knocked out” five sixths of the total number of registered political subjects from the pre-election campaign and led to a sharp narrowing of the Russian political field. According to the Ministry of Justice, at the end of 1999, 139 public associations with political status were registered in the Russian Federation, and only 26 of them were able to participate in the elections. Both measures (the threshold and the new registration rules) led to the situation that the mandates were distributed between two associations and four blocs, but at the same time, all those who passed took81.7% of the voters’ votes as a whole,58 although this indicator was not entirely reliable. Voters quickly realized that any choice, even such a choice in the absence of normal competition, is better than no election at all, and they began to vote not so much for their real favorites, but for parties that could take votes away from those parties whose entry into the Duma was from their point of view undesirable. In fact, this is how the first amateur “smart vote” happened, which redistributed the votes of a significant part of the protest electorate in favor of parties that tried to ensure their own advantages by transforming the electoral legislation.

5. In the new version of the Law “On the Election of Deputies…” of 1999, there was also an attempt to introduce sanctions for parties for refusing to receive parliamentary mandates (against unscrupulous so-called “steam locomotives”). If the deputy who occupied one of the first three places in the federal party list terminated his parliamentary powers without compelling circumstances in the first year from the day of the election, then his mandate should be transferred to the second electoral list.59 In addition, the reason for the removal of the party’s mandate and its transfer to another association was the deputy’s failure to comply with the rule on resigning from authority as not compatible with the status of a deputy. However, the wording of the Law, which lists valid reasons for the refusal of the mandate, suffered from legal uncertainty (recognition by the court of incapacity, serious illness, and persistent health disorder of the registered candidate or his close relatives). As a result, the rejection of the mandates of several such “faces of the party” did not result in any negative consequences for electoral associations. The vague wording of the Law, on the contrary, became a different and convenient basis for the subsequently widespread practice of using unscrupulous “candidate steam locomotives” in the pre-election struggle.

The following rule can also be considered as a sanction: if the number of candidates excluded from the federal list during the election campaign at the request of the candidates themselves or by a decision of the electoral association (or bloc) exceeds 25% of the total number of candidates on the list, or in the case of the elimination of at least one of the candidates who occupy a place in the top three of the federal part of the list, then the Central Election Commission is obliged to refuse to register such a list or to cancel it.60

6. And finally, in the new version of the Law “On elections of deputies of the State Duma…” in 1999, the legal meaning of protest voting was determined. A norm was introduced on the recognition of elections in a single-mandate electoral district as not being valid in the event that the number of votes scored by the winning candidate was less than the number of votes cast against all candidates.61

Actually, this was really a breakthrough novelty aimed at a fuller accounting of the voters’ will. The protest votes were not lost, but, on the contrary, when they prevailed, they determined the result of the vote and demanded its full review by holding new elections. There have always been many disputes around the choice “against all.” In that case, scholars have shown and provided evidence that in proportional elections, the possibility of voting “against all” works for the party-leader. However, in the conditions of single-mandate elections, such a vote is a serious indicator of voters’ confidence in the electorate, therefore, the consideration of the protest factor works only in favor of the real representation of the interests of the population in the legislative body. That’s the path that all the electoral systems of the world took—that of gradual identification and legal consolidation of any potential of taking into account the opinion of the maximum number of citizens.

The Elections of 1999

Parliamentary elections held in December 1999 were one of the most significant events of the post-Soviet defective democracy period. In them, as in a drop of water under a microscope, all these democratic defects are visible. On the one hand, they are considered one of the most competitive. Moreover, they are remembered as nothing less than “the last truly competitive parliamentary elections in the country.” But competition takes place within the socio-cultural frameworks that exist at the moment, and the framework then was still post-Soviet.

On the other hand, these were the dirtiest elections from the point of view of political correctness. A feature of this election campaign was active denigration of opponents. Competitors ordered television stories, cartoons in newspapers and defamatory leaflets against each other, that is, they “butchered” each other outside the bounds of all decency and absolutely unscrupulously. Naturally, such a “butchering” caused a powerful irritation of the population. “By democracy is meant respect for the opinion of the population, observance of the law, and in general, democracy is a positive connotation. And in this case, the competition did not succumb to democracy, a democratic way, freedom, and so forth, because there was competition by three very powerful influence groups. In 1999, real competition, half gangster, burst into the public space. When there was competition for power and property in the post-Soviet reality, it would be strange to think that these people would exchange pleasantries and criticize each other in a polite way. “They communicated as they were able to,” writes Dmitry Oreshkin,62 recalling these elections. And it was then that the institution of corrupt purchase of loyalty was formed and established. In the 1990s, this was not yet the case.

In many ways, these elections became the very foundation on which the political picture of today was later written. Why? Because, as we remember, the rules for participating in the elections of public-political organizations were complicated against the background of the party system that was just beginning to form. Together with the electoral threshold, these rules “knocked out” five sixths of its participants from the pre-election struggle, and instead of the competition of ideas and political programs came the competition of the winning, capitalist elites—capitalist, if we use Soviet terminology (not very correct, but used in the absence of others).

The first group of elites included the old “nomenklatura”—communists led by Zyuganov, Makashov and other people who believed that it was necessary to go back to the status of the oblast’ committees. They wanted to return a comprehensible vertical, corporate way of management, when everything was controlled by one party.

The second group is a neo-nomenklatura (Otechestvo—VsiaRossiya (“Fatherland—All Russia”)), which sought to strengthen the state and wanted government capitalism with limited competition, that is, capitalism for the “promoted,” for the “approved,” for the “leaders.” This group was headed by Luzhkov and Primakov. They had a whole club of governors. In 1999, such a state of affairs was clearly manifested in the results of the voting in those regions which later received the name “electoral sultanates,” where the election results were falsified according to the interests of local elites: Tatarstan, Bashkortostan, Dagestan, Ingushetia, Karachay-Cherkessia, Kabardino-Balkaria, Severnaya Ossetiya and others.

The third force was presented by the updated young nomenklatura (Edinstvo(“Unity”)). This was the team of young Putin, who, like Primakov, also came from the KGB, but, unlike the second one, more westernized, more liberal, relying on the money of young capitalists who were not yet fully oligarchs, but who fought for this status, that is, based on bureaucratic business.

Therefore, the main problem of those elections was not the fight against communism, as in 1995–1996, but the fight between the supporters of greater “nomenklaturization” and greater competition.63 The Duma elections determined which parliament the new president would work with, the election of which had to be held three months later. Boris Yeltsin did not interact with the new parliament: he resigned on December 31, 1999, and the first session of the State Duma of the 3rd convocation took place on January 18, 2000.

Compared to the 1995 elections, voter turnout decreased: 61.85% against 64.7%. There were 107,796,558 people in the list of voters, that is, approximately 66.7 million Russians participated in the elections. 3.3% of the voters voted “against all.” According to the results of the voting, the Communist Party of the RF received 25.11% of the votes (113 mandates), “Edinstvo” 16.22% of the votes (73 mandates), “Otechestvo—All Russia” 14.67% of the votes (66 mandates), “Soyuz pravykhsil” (Union of Right Forces) 6.44% of the votes (29 mandates), “Yabloko” 3.77% of the votes (20 mandates), and Zhirinovskiy’s Liberal Democratic Party of Russia (LDPR)3.77% of the votes (17 mandates).

After some time, representatives of two of the elite groups would merge into one. Their ideas would be combined and developed in practice. The system built on these ideas is a priori potentially corrupt, as any bureaucratic business and any state capitalism fully realizes its corrupt potential. They would be transformed and come to be called the party “United Russia,” although it is of coursenot a political party and has never been one. Having combined their mandates in the parliament, they would outnumber the communists and become the largest faction that captured the main legislative committees in the Duma and was able to adjust party and electoral legislation to their needs even before the next electoral cycle. But this will be a completely different story and practically a different country with a different president at the head, formatted on the foundation of a defective democracy.

“The new ruling groups were not interested in a change of power as a result of democratic elections. Such an outcome of the post-communist transformation meant the vulnerability of the new political regime, which was deprived of immunity to authoritarianism, but at the same time weakened by the long and dramatic decline of the 1990s, which, in turn, was largely a side effect of the dramatic collapse of the former Soviet economic and political model.”64

President Yeltsin played a controversial role in the history of Russian constitutionalism. He of course considered himself the creator and defender of democratic institutions. Indeed, such institutions as independent mass media and political parties developed precisely during the years of his presidency (notably, all three campaigns for the elections to the State Duma which took place during this period ended with the victories of opposition parties). During his time the principle of the election of governors was strengthened. The first president literally saw his mission as rooting democracy in Russia. But at the same time, some of his personal qualities—impulsiveness, authoritarianism, and self-confidence—prevented reforms from being brought to their logical ends. And, in the end, it allowed the reforms to be turned backwards.