Comments and comparisons with European electoral laws on the postal voting provisioned by Law number 288/2015

Author:Dragos Lucian Ivan
Position:Avocat Dr.
Pages:176-184
SUMMARY

The purpose of our theoretical research is investigating the manner in which the modifications brought about to Law number 288/2015 concerning the use of the postal vote are able to secure the vote of the person. We are also concerned with the European legislation on this matter, debating similar provisions in the Italian and German electoral law. The right to vote exists in order to be performed, thus we analyzed the proposal in link with its purpose, that of encouraging people to vote. We participate in the voting process, determined to ferret out what the political life has to offer for our democracy, only to end up wondering about ourselves as citizens. The manner in which we construct electoral legislation should be link with the behavior of our citizens, as well as with the findings at the European level. We found that there is inherent insecurity in this type of voting and that Law no. 288/2015 lacks certain provisions that are used in the European legislation.

 
CONTENT
176 DRAGOS LUCIAN IVAN
Comments and comparisons with European electoral laws on the
postal voting provisioned by Law number 288/2015.
Dragos Lucian Ivan1
Abstract
The purpose of our theoretical research is investigating the manner in which the
modifications brought about to Law number 288/2015 concerning the use of the postal
vote are able to secure the vote of the person. We are also concerned with the European
legislation on this matter, debating similar provisions in the Italian and German electoral
law. The right to vote exists in order to be performed, thus we analyzed the proposal in
link with its purpose, that of encouraging people to vote. We participate in the voting
process, determined to ferret out what the political life has to offer for our democracy, only
to end up wondering about ourselves as citizens. The manner in which we construct
electoral legislation should be link with the behavior of our citizens, as well as with the
findings at the European level. We found that there is inherent insecurity in this type of
voting and that Law no. 288/2015 lacks certain provisions that are used in the European
legislation.
Keywords: Public Law, Electoral Law, Law number 288/2015, presidential
elections.
1. Introduction
Paradoxically, the protean quality of the vote is that it seems to have
something to say about ourselves. Taking part in the voting process determines
the citizen to analyze not only the political offer, but also himself. You begin in
the middle of the political life and stop unexpectedly with what may or may not
bring your vote.
To describe this in a different way, in the current national context the active
participation of the citizen in the political life of the country has become not only
relevant, but also paramount. As an European democracy, Romania holds
responsibility not only for the manner in which it constructs and maintains its
own democracy, but just as much on the influence it brings into the European
community.
1 Avocat Dr., i_dragos_lucian@yahoo.com.
Law Review vol. X, issue 2, July-Decembre 2019, pp. 176-184
Comments and comparisons with European electoral laws 177
At the same time, there is undeniable drive in the European Union’s
institutions to get citizens to participate in the voting process. The European
community exists in a permanent link that allows for positive, as well as negative
influences to travel from one corner to another. Besides the responsibility of
strengthening one’s own democracy via citizen participation, the authorities need
to allow modernization of the country in a synchronic manner. The postal ballot
represents one manner of trying to integrate the will of the Romanian citizens in
the political life of the country. Romania presents a high degree of citizens living
in the European community. These citizens need to be involved in the political
decisions of the country. This law represents a manner in which the Romanian
legislator expects to attract the Romanian citizens abroad to vote in greater
numbers. Through this proposal the legislator desires to use the postal ballot for
the presidential elections. Postal voting system that relies on a postal ballot has
been recognized as being vulnerable, but it came to use in order to respect the
main principal of universal voting. We believe that the postal voting system is
allowed via understanding that we can renounce at some of the security imposed
upon the vote in order to follow the universal suffrage principle. There are some
drawbacks to using the postal voting system. Some we shall bring into question
in this article, while some have already been identified by international
organism: “in-person registration requirement”, “exceedingly tight deadlines”,
“host-country postal service disruptions”, and an “ineffective voter information
campaign” states the report [1].
2. Provisions that cover the process of registering
In our critical probing, the law starts by presenting the manner in which the
voter comes to be registered for exercising his right to vote via a postal ballot.
The registration needs on-line access. At this point we notice a limitation in the
possibility of a person to exercise his right to vote. Although the postal ballot is
an alternative to the traditional ballot without being a vote through electronic
means, it does require an on-line registration. We find it modern, but a bit
strange as it limits the access of people to voting via postal ballot. We believe it
necessary for the legislator to create a manner of registering for postal voting
without using an on-line system. Besides the registration process that should take
place both on-line and in person at a Romania authority, we believe there is also
the need to regulate the desire of the voter to withdraw his option of exercising
his voting right through postal vote. We were unable to discover the provision
allowing the person to withdraw the desire of using postal voting . For examepl,
the choice to vote in Italy may be subsequently withdrawn by written notification
to be sent or delivered to the Consular office using the same procedures, and
within the same timeframes, envisaged for the exercise of the option. We believe
178 DRAGOS LUCIAN IVAN
that the written withdrawn should be accompanied by the possibility to
renounce at using postal voting via an on-line application [2].
In comparison the German Electoral Law provisions for more contact
between the voter, the person that assists the voter and the authority. Contact
with authorities is seen as a further security measure. The German Electoral Law
provisions for an oath given in front of the an oath to the Constituency Returning
Officer that the ballot paper has been marked either personally or in accordance
with the declared intent of the voter [2]. The voter or the person assisting him or
her must indicate on the polling card that he or she gives an affirmation in lieu of
an oath to the Constituency Returning Officer.
The data that the person has to transmit is personal and sensitive: name,
surname, personal numerical code, address of the domicile or of the residence, e-
mail address and the option for delivering the envelope with the vote. This
procedure applied for the voter that has the domicile or the residence outside
Romania. Besides entering personal data, the voter shall annex a scanned copy of
his Identity Card and of the documents that prove his right of stay issued by the
proper authorities. A mandatory condition, required by the law is for the identity
card to be valid (Art. 4 in-line 5, Law number 288/2015, with modifications in
place starting with the 28 of July 2019). Similar personal data is required by the
Italian Electoral System where a written notice must be provided on unstamped
paper and - in order to be valid - must contain the name, last name, date, place of
birth, place of residence and signature of the voter [3].
The voter needs to consider the fact that there is a dead-line for registering.
The deadline starts with the first of April of the year in which elections take place
and ends just before 15 days from the start of the electoral campaign[3].. The
Italian legislator considered that a different deadline would be preferred. The
Italian legislation provides that the written notice of this choice must arrive at the
Consular Office no later than ten days after the date the elections are called, in
other words no later than Monday, January 8, 2018 [3]. The voter does not need
to be already registered in the evidence of the Electoral Registry provisioned in
art. 42 in-line 2 of Law number 288/2015.
The Permanent Electoral Authority has a mandatory obligation, that of
verifying within five days from the moment in which the person provided the
data the veracity of the before mentioned data. The on-line registration is
valuable only for that ballot. The five day deadline for the authority to verify
data is important for the person just as much. Only once the five day dead-line
expires can the person verify his registration in the Electoral Registry. The voter
is not registered as long as the data, as a result of the verification, is either
incomplete or incorrect. The procedure for registering for postal ballot is different
from the procedure established by law for voting in a polling station, as it implies
an extra effort from the person. This option is an exception from the normal
Comments and comparisons with European electoral laws 179
procedure and it involves extra effort and initiative. By analyzing the provisions
for exercising one’s right to vote we notice differences between those norms and
the provisions that regulate the postal ballot in several points such as: the manner
in which the electoral lists are comprised, the manner in which the electoral
registry is built and at the level of the voting procedure [4].
The permanent electoral lists for postal voting are created by the Permanent
Electoral Authority in 48 hours from the expiration of the five day dead-line.
These lists shall be sent to the National Company of Postal Services in 24 hours
from the moment the Permanent Electoral Authority creates the permanent
electoral lists for those that shall exercise the postal ballot. Another important
dead-line is the one in which the Permanent Electoral Authority has the
obligation to transmit the permanent electoral lists with those that chose the
postal ballot. In 3 day time from the creation date of the area electoral office, the
Permanent Electoral Authority has the obligation to send the permanent electoral
lists of those registered for postal voting.
3. The manner in which one exercises the right to vote via postal voting.
The documents needed for exercising the right to vote
The procedure of delivering the documents to the voter is covered in
Chapter IV, Section 1, art. 10 to art. 12, Law number 288/2015, with modifications
in place starting with the 28 of July 2019. The procedure of delivering the
necessary documents to the voter holds security measures that protect against
outside tempering upon the envelope with the vote and hold attention to
properly securing the vote inside, as well as to delivering it to the right address.
By doing this, the legislator tries to ensure that the envelope reaches in time the
electoral office. Despite these security measures, the legislator fails to properly
secure the essence of the vote: the fact that it should be a free, direct and secret.
This responsibility falls upon the voter. The switch of responsibility is only
natural as a result of the entire procedure. As the procedure becomes more
flexible, the less responsibility is placed on the state authorities that have less
control over the entire procedure. Although the voter gains comfort and time for
exercising the right to vote, there is also an added responsibility in the fact that
the voter needs to constantly monitor the documents, the process and the
procedure, having the responsibility of alerting the authorities. Little can be done
in terms of ensuring the same degree of credibility in the vote delivered via mail,
as it is passed from hand to hand. The security measures are meant to prevent
outside tampering, but little can be done against human error and delivery error.
It is difficult to ensure that 100% of the envelops shall reach their destination in
time, as there is no such full-proof guarantee for any delivery. It lacks the
framework design to protect the secrecy of the vote, such as the presence of the
180 DRAGOS LUCIAN IVAN
polling station that can prevent outside pressures upon the elector at the moment
of exercising the vote [5].
The law stipulates the documents that the voter receives: the outer envelope,
the inlying envelope, the voter certificate, the instructions and the ballot paper.
At this point we note that the documents needed for postal voting in Romania
are similar with those demanded by The Federal Electoral Law of Germany in
Section 36, article 1 [2]. Besides these documents that are meant for the Romanian
voter abroad, there is another element that is meant for the Romanian voter that
votes from Romania. For this category of voter, the law provisions the inclusion
in the package of a sticker that comes with the address of the electoral office for
managing the postal ballot in the country. The voter has to choose this electoral
office. The procedure is meant to protect the vote of the person by having
security measures. It is important to notice that the protection is oriented towards
tampering with the envelope, the process being able to protect only from outside
interference. The outer envelope is meant to hold the inlying envelope and the
voter certificate. The protection is represented by a self-seal. In case of the
presidential elections the voter shall receive two distinctly marked outer
envelops, one for the first ballot and the other for the second ballot. It is
important to note that the outer envelope is self-addressed, in order to prevent its
loss as a result of lack of information or lack of attention from the part of the
reader. The legislator has thought to norm for the implementation of available
measures to prevent the loss of the envelope or to avoid misidentification of the
voter. Thus, the outer envelope has the name, surname, the address of the voter,
as well as a bare code that ensures the proper identification of the voter. Dangers
such as the loss for lack of the proper address, lack of information regarding the
voter and loss of the documents inside was envisaged by the legislator.
Unfortunately, the legislator cannot protect the right to vote via correspondence
from outside damage to the envelope, the material presents a high degree of
sensitivity to outside dangers or from the reality that sometimes envelopes are
lost during the delivery process (art. 10 in-line 1, Law number 288/2015, with
modifications in place starting with the 28 of July 2019).
The inlying envelope shall also contain safety elements such as a seal. The
purpose of the inlying envelope shall be to allow the voter to mark his vote by
applying a “Voted” sticker. In the case of the presidential vote the voter shall
receive two inlying envelopes and two “Voted” stickers, each distinctly marked
for the first ballot and for the second ballot (art. 10 in-line 2, Law number
288/2015, with modifications in place starting with the 28 of July 2019).
The voter certificate represents in itself a safety measure, as it stands for the
identity of the person and for the right to vote. The person that holds the voter
certificate has the right to vote. There are a number of personal data on the voter
certificate: name and surname of the voter, the personal code, the domicile or
Comments and comparisons with European electoral laws 181
abroad residence, and as the case may be the series and number of the ID card, as
well as the dated and signed self-declaration of liability of the voter that the vote
was freely, directly and secretly. The voter certificate can be used only once and
has to be signed by the voter. At this point we notice that the responsibility for
securing the vote, for the vote to be a free, direct and secret vote, falls upon the
voter. We believe this not to be perfect vision upon the secrecy of the vote.
Through this attitude the value protected seems to be viewed as more of a
personal value, than a societal value. We believe that the secrecy of the vote
represents a social value that should be guarded by the society, as it impacts the
society first. This value should not be entrusted only to the individual and should
not be viewed in any context as a value upon which one person can place more
or less value than what the legislator considered to be necessary. Confidentiality
is a privilege provisioned for in order to guarantee the freedom of expressing
one’s freedom to elect [6]. The postal ballot places a lot of the responsibility of the
voter [7] [8], including in the case represented by Romanian legislation. The voter
has to secure the vote and ensure the security of the vote. Although the vote via
correspondence presents the advantage of being performed within the comfort of
one’s home, the person has to take part of the responsibility. This becomes
evident from art. 11 in-line (4), Law number 288/2015, with modifications in
place starting with the 28 of July 2019, that stipulates the obligation of the voter
to communicate to the Permanent Electoral Authority the loss, the theft, the
damage or the destruction of any of the documents sent to the voter. It is
important to note that the voter has to announce the authorities this actions, as
long as he is not at fault. The voter is obliged via article 3 in-line (5), Law number
288/2015, with modifications in place starting with the 28 of July 2019, to protect
the secrecy of the vote. In case the voter does divulge the vote the voter shall be
held responsible in full compliance with the penal law. In the eventuality that the
voter shares the blame or holds the blame for the loss, theft, damage or
destruction of any of the documents he shall be held responsible according to the
law. Part of the responsibility is transmitted to the voter that is also mandated by
the state to signal to the authorities the fact that the postal ballot failed to reach
him with at least 20 days before voting day.
The instructions shall contain the date to which the voter needs to place the
postal ballot in a mailbox or at the postal office. Only by respecting this deadline
can the vote reach the electoral office in time to be considered. The voter holds
responsibility of the vote exercised. There is no excuse for the voter that after
exercising the right to vote via correspondence, votes in a polling station. In such
a situation the voter shall be held accountable in full compliance with the penal
law (Art. 3 in-line 2, Law number 288/2015, with modifications in place starting
with the 28 of July 2019). The validity of the vote via correspondence is in nexus
182 DRAGOS LUCIAN IVAN
with its free, secret, equal and direct character. A vote that does not comply with
these legal demands shall be subject to the scrutiny of the law.
4. The manner in which one exercises the right to vote via postal voting.
The practical manner in which the voter exercises the right
It is important to note that the outer envelope must contain all the
documents demanded by the present day legislation and in full accordance with
the instructions provided in the package meant for the voter. The voter shall
insert the vote certificate and the ballot paper first into the inlying envelope, then
into the outer envelope. The voter has to carefully insert his personal data onto
the voter certificate, to date and to sign this document. The voter certificate shall
attest the identity of the person and that the vote was exercised by the rightful
person (Art. 14 in-line 2, Law number 288/2015, with modifications in place
starting with the 28 of July 2019). The voter shall vote via placing the sticker on
the ballot paper. The ballot paper shall be introduced into the inlying envelope. It
is important to note that the vote shall be cast by the person. At this time Law
number 288/2015, with modifications in place starting with the 28 of July 2019
does not mention the possibility of the voter to be helped by another person to
vote. We mention this issue at it contrasts with the Electoral Law in Germany
where the legislator specifically mentions in Section 36, article 2 that there is also
“the person assisting him” [2]. The inlying envelope, together with the voter
certificate shall be introduced in the outer envelope. It is important to note that
both the inlying envelope and the outer envelope shall be sealed. The envelope
needs to reach the headquarters of the electoral office for postal voting prior with
3 days to election day. We notice a difference between the vision of the Romanian
legislator and the German legislator. In the Federal Electoral Law of Germany, in
Section 36, article 1 letter b there is less time for the authorities to organize the
postal ballots received. The German voter has till 06:00 pm in election day to
have his postal ballot reach the Constituency Returning Officer. There is more
time for the postal vote to reach its destination, which presents an advantage for
the voter. Nevertheless, the fact that the vote continues well into the voting day
can represent a vulnerability. We believe that the Romanian legislator chose well
not to overlap the two voting systems, leaving plenty of time to organize the
postal vote, to secure them and guarantee a better administration of these votes
without combining the two systems. The voter has more than one choice on
where the envelope can be delivered. The legislator has placed emphasized on
the importance of the vote and has allowed the voter to transmit the envelope
personally to the postal office or in any mail box, via any delivery operator or to
any embassy, consulate or diplomatic mission. Although the postal ballot is
declared to be free, as per article 3 in-line (8), Law number 288/2015, with
Comments and comparisons with European electoral laws 183
modifications in place starting with the 28 of July 2019, in the eventuality that the
voter used a private delivery company the costs will have to be covered by the
person (Art. 14 in-line 4, Law number 288/2015, with modifications in place
starting with the 28 of July 2019).
5. Conclusion
Our insight about the postal ballot and how is mistakenly viewed as a viable
secure modality of exercising one’s right to vote should encourage the
diversification of methods employed in order to secure the vote of the citizen.
Participating in the voting process renders the citizen’s memory in ways that
engage him in a process of looking back critically and also looking forward.
De lege ferenda we consider it necessary for the introduction of the person that
assists the voter. The German Federal Electoral Law provisions for the existence
of a person that assists the voter because postal voting is seen as an exception
meant for those that are unable to present themselves at the polling station. By
mentioning this situation we would acknowledge the fact that this type of voting
can be used for citizens living within or outside Romania, but with physical or
health difficulties. Furthermore, it would allow the person of the assistant to be
involved and recognized in the voting procedure, thus protecting him from the
accusation that he may interfere in the voting process. Without this mention in
the law there is a relative open way of accusing the well intentioned person of the
assistance that he or she is part of an infraction against the right to vote of the
person. Another reason would be that it moves some of the responsibility,
rightfully, to the assistant and it attracts attention to the authorities that special
care and scrutiny should be given to such cases.
We believe that the current legislation should also expressly provision for
the person to withdraw the desire to vote via the postal voting system. We could
not find any legal provision that allows the person to change this option.
Considering that this an extraordinary option, meant to allow the person to
participate in the democratic vote, focused upon Romanians that live abroad, the
legislator should take into consideration the fact that meanwhile the person can
return to Romania. A special procedure should exist in the law in order to
facilitate the participation of the voter in the democratic electoral process.
References
[1] Report written by the Organisation for Security and Co-Operation in
Europe (OSCE) and the Office for Democratic and International Human Rights
(ODIHR), after observing the 20-D Spanish elections.
184 DRAGOS LUCIAN IVAN
[2] The Federal Electoral Law of Germany, Federal Law Gazette, last
amended by Article 1 of the Act of 18 June 2019,
https://www.bundeswahlleiter.de/en/dam/jcr/4ff317c1-041f-4ba7-bbbf-
1e5dc45097b3/bundeswahlgesetz_engl.pdf.
[3] Law 459 of 27 December 2001, Provisions governing the right to vote of
Italian citizens resident abroad, Official Journal no. 4 of 5 January 2002,
http://www.comune.torino.it/elezioni/2005/referendum/legge459_2001en.pdf.
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[7] Lago, I., Blais, A. (2019). Early voting and satisfaction with vote choice.
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