LIMITED ACCESS TO POLITICAL PROCESS IN MOLDOVA:

Is Moldovan proportional electoral system truly proportional?

Moldova is a country of proportional electoral system. This system provides for distribution of places in representative bodies (Parliament, local councils) in proportion to the number of votes accumulated during the elections. A party gaining 25% support would get 25% of seats according to the proportional electoral system. Under the proportional electoral system the whole country makes a single electoral circumscription for the purposes of calculation of votes cast and distribution of representative offices.

Unlike proportional electoral system, under majority (uninominal) electoral system the country is divided into a number of electoral circumscriptions. The number of circumscriptions corresponds to the number of places in the representative body. The core idea of the majority uninominal system is that the first mostly popular candidate (according to the votes cast) in each of the circumscriptions gets the place in the representative body. This system is extensively used in USA, UK and other countries of former or present British influence.

Each of the systems has its advantages and disadvantages. The majority (uninominal) system provides for a closer connection between the electors and the candidates, since the latter have to concentrate just on their circumscription to win the elections. On the other hand, however, this system allows significant distortions in proportionality of representation and generally favors bi-partisan system to the detriment of small and medium-size parties. To give an example, if Party A gets in half of circumscriptions 51% of votes, Party B gets 51% of votes in the other half of circumscriptions and Party C gets in each of these circumscriptions 35% of votes, Party A and B will share all the seats in the representative body, while Party C – none. In this way a party, which represents interests of 35% of population will not be allowed to the legislative decision-making process at all.

The strength of the proportional electoral system is supposed to be its proportionality. In general, under proportional system a party shall receive the number of representative offices proportional to the number of votes cast. It is this system which is literally “representative”, since it allows for symmetrical representation of electoral preferences.

At the same time pure proportional system has a serious disadvantage – it allows “in” small and very small parties, who managed to command a number of votes proportional to at least one seat in the representative body. However, too many parties in Parliament or council are detrimental to political stability and functionality of the government. More than 4-5 parties in a representative body proved to be inefficient: they disagree on prime-minister, cannot form a cabinet, each major bill needs extensive and exhausting inter-party consultations. To avoid this deficiency the proportional electoral system is usually updated with a so-called “electoral threshold”. The electoral threshold is a condition imposed on political parties to accumulate a certain minimal percentage of votes (3, 4, 5 %) to get any seats in the representative body, even if to receive one seat a party needs less than the set percentage minimum. For example, if the representative body has 100 vacant seats, in a pure proportional system a party has to command 1% of votes to get 1 seat. In this way in theory such a representative body can include up to 100 representatives of different parties. In practice pure proportional system allows into the representative body about 7-8 parties, none of them holding decisive majority.

Under the 4%-threshold proportional system, a party will receive any seats, only if it commands at least 4% of votes. The threshold clause produces certain distortions to the proportionality of the proportional system, but it is supposed to be a successful balance between the principle of symmetrical representation and value of governmental functionality. It is obvious that the threshold clause was not supposed to undermine the whole idea of proportional electoral system, but rather to correct one of its disadvantages. For this reason in rare cases the electoral threshold exceeds 5% throughout the world.

As for the Republic of Moldova, its first electoral law provided for a 4% threshold. Under that law the 1998 Parliamentary elections took place. The threshold caused 23,57% of votes to be left out. The ratio of distortion, i.e. the percentage of seats gained compared to the percentage of votes cast, was equal to 1,32 (in other words, each party who managed to overcome the threshold received 1,32% of offices for each 1% of votes cast). However, a later amendment to electoral law raised the threshold to 6%. Under the later version of the Electoral Code the 2001 early Parliamentary elections took place. The 6% threshold caused 28,33% of votes to be left out. The ratio of distortion was equal to 1,4. (If the 2001 Parliamentary elections took place under 4% threshold, only 17,52% of votes would be left out, distortion ratio being equal to 1,21.)

But this is not the end of the story. Recently, the Communist-majority Parliament, in cooperation with the Christian Democratic Popular Party, has adopted another amendment to the Electoral Code, which elevated the threshold for electoral blocs of two parties to 9%, of three and more parties – to 12%.

It is our position that any electoral threshold, which seriously undermines the whole idea of proportional electoral system, and ultimately the legitimacy of the “representative” body (Parliament, local council), is not democratic. Contemporary democracy is based on personal representation. That means that these are the individual citizens in their own capacity, who are to be represented, not social classes or groups. Consequently, the system of representation has to reflect as accurately as possible the interests of all and each particular individual. It, therefore, has to correspond to the existing preferences in society. That is why any electoral mechanism, which, although called “proportional” or “representative”, is neither representative, nor proportional, may not be considered democratic. It is our contention that the existing Moldovan electoral system of 6%-9%-12% threshold distorts the actual electoral preferences to a very high degree. It inflates the interests of a group who voted for several major parties, but absolutely neglects the preferences of supporters of medium-size and small parties. It multiplies the value of a citizen who voted for a major party by 1,4, while reducing the value of a citizen who voted for other parties to 0. This case is in sharp contradiction with the principle of equal vote.

Finally, the proportional electoral system with an excessive threshold virtually accumulates the major vices of the both classical electoral systems. It reflects distortedly the electoral preferences, as the majority uninominal system does. It is still “further” from the people than the majority uninominal system.

Electoral laws and practices of the main world democracies who use proportional electoral system do not accept electoral threshold exceeding 5%. In Israel it is equal to 1%, in Denmark – to 2%, in Argentina – to 3%, in Sweden – to 4%, in Germany – to 5%. Judicial practice of the German Federal Constitutional Court in its Schleswig-Holstein Voters Association (1952), Danish Minority (1954), Bavarian Party (1957), National Unity Election (1990) cases has extensively developed the concept of the electoral threshold limitations.

First, in the Schleswig-Holstein Voters Association case (1952) the Court invalidated a 7% electoral threshold, suggested by a German land – Schleswig-Holstein. In its decision the Federal Constitutional Court argued that such an exaggerated threshold offended the principle of equality as applied to parties. A very compelling or special reason, according to the Court, would have to justify a rule “exceeding the common German value of five percent”. In the Danish Minority case (1954) the Federal Court went even further authorizing exemption of a national minority from the electoral threshold requirement to make possible its representation in the decision-making body. Altogether, the German constitutional practice strongly disapproves any deviation from the well-balanced value of 5% as applied to electoral threshold. Special circumstances only could justify lowering the threshold (like a compelling need to upkeep interethnic peace), while very special and demanding reason could justify a threshold exceeding 5%.

In conclusion, we suggest to revise the actual electoral legislation and to liberalize it in conformity with the fundamental standards of representative democracy – a representative democracy shall be representative, i.e. shall represent the citizens as adequately as practicable. If no limit is imposed on the manipulations with the electoral law, we will very soon witness a de-facto one-party system (on the background of a formally multiparty one); a system which will extensively reinforce the party(ies), which is/are in power, and effectively discourage any new and emerging political forces; a system wherein more than 1/3 of citizens will cast “zero votes”.

Veaceslav Balan, Jurist, LLM in Comparative Constitutional Law,
Center for Civic and Political Initiative “POLIS”,
Collegium for Social and Legal Research