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Holding democratic elections in a country during wartime is impossible — constitutional law experts
Democratic elections cannot be held during martial law, and after it ends at least six months are needed to organize the process.
Doctor of Law and constitutional law expert Yurii Kliuchkovskyi emphasized that when Venezuela’s “president” was abducted, the international community did not stand up for Maduro because democratic states question his legitimacy. Therefore, Ukraine’s electoral process must be conducted in a way that leaves no doubts about its legitimacy—neither among Ukrainians nor among international partners.
As for referendums, issues of the state’s territorial integrity cannot be put to a vote, because Chapter I of the Constitution is its “immutable core.” This chapter states that “the territory of Ukraine within its existing borders is integral and inviolable.”
During the second meeting of the working group preparing proposals on the specifics of organizing and conducting elections during martial law in Ukraine—chaired by First Deputy Speaker of the Verkhovna Rada Oleksandr Korniienko—participants also discussed the possibility of online voting, voting by mail, and the specifics of exercising electoral rights by draft evaders who fled abroad.
Constitutional law expert Yurii Kliuchkovskyi stressed that elections like those in Russia can always be held, but they will not be free or fair. He added:
Yurii Kliuchkovskyi
Constitutional law expert
However hard we are pressured, we must act in accordance with the Constitution. Otherwise, we ourselves will be guilty before the international community for violating the Constitution, democratic principles, and the rule of law. Everything the authorities do is constrained by the Constitution. The demand to hold elections under martial law is incorrect. There is not a single example in 20th-century history of elections being held on the territory of a state where hostilities were taking place at the same time. Elections were held in the United States during World War II, but the fighting was in the Pacific, not on its own continent. Britain did not hold elections—Parliament functioned from 1935 to 1945. No one said the authorities there were illegitimate. Therefore, arguments (in favor of elections—ed.) should be viewed as a form of political pressure, and we must understand how to respond.
In addition, the expert recalled that during the so-called Anti-Terrorist Operation, the aggressor state grossly violated ceasefire regimes during elections in Ukraine:
Yurii Kliuchkovskyi
Constitutional law expert
Expecting that if a ceasefire is signed Russia will abide by it seems a bit naïve to me. And who will prevent collaborators from using presidential elections for subversive activities? That poses a greater danger than competition among domestic candidates in presidential elections.
Doctor of Law Olena Boryslavska noted:
Olena Boryslavska
Doctor of Law
My students often ask why the Constitution contains a provision prohibiting elections to the Verkhovna Rada under martial law, but there is no such explicit provision regarding the President. For me, one argument lies in the constitutional provision defining the President of Ukraine as the Supreme Commander-in-Chief. By what logic, and how, can the Supreme Commander-in-Chief be re-elected during a war and under martial law? I have no answer to that.
Members of the working group pointed out that ensuring election security at polling stations would be difficult. However, members of election commissions would face significantly greater risks—this involves tens of thousands of people who must voluntarily agree to serve and be sufficiently competent for the elections to be recognized as free and democratic.
Ultimately, Batkivshchyna faction leader Yuliia Tymoshenko said this amounted to blackmail from partners and proposed that the Verkhovna Rada support a statement declaring that there will be no elections during the war, so that discussions about elections simply stop. Deputy Speaker Oleksandr Korniienko asked the MP to present this position at the Conciliation Council.
The working group also discussed the possibility of holding a referendum and whether Ukraine’s territorial integrity could be put to a referendum.
Olha Boryslavska noted that constitutional chapters have different legal force:
Olena Boryslavska
Doctor of Law
The issue of territorial integrity is contained in Chapter I of the Constitution, which sets out the foundations of the Basic Law. In constitutional theory, this is referred to as the Constitution’s immutable core. These provisions are so inviolable that even when amending the Constitution, they cannot be changed.
Under the law, elections and a referendum cannot be held simultaneously.
Previously, Ukrainians voted at embassies and consulates, which are located on sites considered Ukrainian territory. Today, the number of voters abroad has increased so dramatically that embassies and consulates would not be able to handle the load. At the first meeting, Yuliia Tymoshenko noted that to ensure electoral rights for Ukrainians who left the country, Ukraine could buy them tickets home. She spoke категорically against allowing Ukrainians abroad to vote online or by mail.
MP Alina Zahoruiko pointed out that a number of countries are already discussing problems with online voting:
Alina Zahoruiko
MP
We were in Switzerland—David Arakhamia was with us then. We thought this country could be a good example of online voting. But Swiss parliamentarians asked us not to rush into repeating their mistakes. They tried several times to launch online voting. Perhaps their budgets allow it. Of course, each state decides for itself how to conduct elections. But at one of the conferences, the risks of this format were discussed and recommendations were made. If a country decides to hold elections in this format, it should not be done hastily. The advice was to launch a pilot project at a single polling station, then scale it to the level of a settlement or town. This process can take from five to fifteen years, and only then can a decision be made.
Zahoruiko also recalled the Council of Europe’s conclusion that Ukraine is not ready for this format of elections.
Yurii Kliuchkovskyi warned that the secrecy of the vote must be ensured, which is very difficult to guarantee in online voting:
Yurii Kliuchkovskyi
Constitutional law expert
The Venice Commission draws attention to the fact that with electronic voting it is extremely important to provide a technological possibility for recounting votes. Otherwise, such voting methods should not be used. And then there is the question: everyone can vote online, but how will commission members at a polling station verify that you have not already voted and are not trying to vote again? Technologically, this process would require enormous financial costs.
The head of the OPORA civic network, Olha Aivazovska, noted:
Olha Aivazovska
The head of the OPORA civic network,
It seems to me that many controversial theses regarding electoral rights have been voiced here that do not stand up to criticism. This concerns men who went abroad. Let us take a more rational approach to the need for Ukrainian citizens’ participation in the first post-war elections and to creating conditions for exercising both active and passive electoral rights. The theses voiced here look to me like a deliberate restriction of participation in elections for citizens who are abroad not by their own choice, but as a result of Russia’s aggression. If the state calls on citizens to return to Ukraine after they left occupied territories, then it must assume obligations for their integration, including additional material budgetary expenditures—and this is not only about voting. Some citizens who left occupied territories reduced the burden on the state budget.
Kliuchkovskyi commented on men who managed to flee abroad and whether they could be deprived of the right to run for office:
Yurii Kliuchkovskyi
Constitutional law expert
There was such an attempt once, and the Constitutional Court said this cannot be done. But that decision was made in peacetime, when it was an exceptional rather than systemic phenomenon. Today, when there are persons who crossed the border illegally or had short-term permission but did not return and remained abroad, and who do not fulfill their constitutional duty to defend the Fatherland—there is grounds for serious consideration, and this can be interpreted. Although it seems to me that existing legislation may be sufficient.
Regarding citizens abroad, Kliuchkovskyi added that even more citizens remain in Ukraine and endure blackouts and shelling—placing them in unequal conditions compared to those who left:
Yurii Kliuchkovskyi
Constitutional law expert
Those who left occupied territories can still be understood. But what about those who left territories that were never under threat of occupation, or who recently left Kyiv or Lviv? Why can others live like this, and they cannot? The burden on Ukraine’s budget has been reduced by the states that accepted refugees. But they receive Ukrainian pensions, do not pay VAT to Ukraine, and work for those states, while Ukraine lacks labor. Therefore, this issue should be addressed more comprehensively, not simply as a question of restricting the electoral rights of a particular category.
He added that the Constitutional Court could be asked whether those who have lived abroad for more than five or ten years may run in parliamentary or presidential elections, respectively, emphasizing that short-term visits to Ukraine—“coming to visit”—should not affect this period.
The issue of dual citizenship also sparked discussion. If a Ukrainian already holds another country’s citizenship, lives abroad, and votes there for that country’s authorities, can they simultaneously help shape power in Ukraine?
In addition, participants discussed participation in elections by those who essentially engage in collaborationist activities and take part in international “observer” missions from states such as Belarus.
At the end of the meeting, MP Alina Zahoruiko proposed changing the name of the working group:
Alina Zahoruiko
MP
We are all against holding elections under the legal regime of martial law. There can be no simultaneous elections and referendums. I propose removing from the working group’s name the phrase referring to the special period. This will ease some of the tension. Everyone will understand that parliamentarians are working specifically on the issue of holding elections in the post-war period.
Going forward, members of parliament, experts, and civil society representatives—including the civic initiative “Holka”—will develop relevant draft laws concerning post-war elections.
