Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Publicación cientíca en formato digital
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185
Depósito legal pp 197402ZU34
ppi 201502ZU4645
Vol.40 N° 74
2022
Recibido el 06/06/2022 Aceptado el 08/09/2022
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
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Co mi té Edi tor
Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
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Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
José Ce rra da
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Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
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Vol. 40, Nº 74 (2022), 309-327
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Experience of legal support in electoral
processes in Denmark, New Zealand and
USA: possibility of use in Ukraine
DOI: https://doi.org/10.46398/cuestpol.4074.16
Oleh Martseliak *
Svitlana Martseliak **
Viacheslav Shamrai ***
Hanna Zubenko ****
Kateryna Danicheva *****
Valeriy Velychko ******
Abstract
The aim of the article was to discuss conceptual ideas on the
state of legal support of the electoral process in Denmark, New
Zealand and the United States, as well as to identify opportunities
to use the positive experience of these countries in Ukraine.
The article uses such methods as dialectical, comparative law, system-
structural, formal-dogmatic, modelling and forecasting. It should be noted
that, despite the ability of EU countries to introduce their own electoral
legislation and choose the electoral system, the exercise of the right of
everyone to vote or be elected is ensured by compliance with international
standards of organization and conduct of elections. It is concluded that the
countries studied: Denmark, New Zealand and the United States generally
adhere to the rule of law and the electoral process is well organized. It is
stated that the due legal support of the electoral process is a tool for the
formation of legitimate representative bodies of state power and local self-
government. In addition, it is proposed to implement in the Ukrainian
* Doctor in Law, Professor, Head of the Department of Constitutional Law, Taras Shevchenko National
University of Kyiv, Kyiv, Ukraine. ORCID ID: http://orcid.org/0000-0001-6686-0255
** Ph.D. in Law, assistant professor of the Department of Constitutional and Municipal Law, V.N. Karazin
Kharkiv National University, Kharkiv, Ukraine. ORCID ID: https://orcid.org/0000-0002-4645-3051
*** PhD hab. (Law), Doctor in Law, assistant professor of the Department of Constitutional Law, Taras
Shevchenko National University of Kyiv, Kyiv, Ukraine. ORCID ID: http://orcid.org/0000-0001-
8090-7523
**** Ph.D. in Law, Associate professor, assistant professor of the Department of Constitutional and
Municipal Law, V.N. Karazin Kharkiv National University, Kharkiv, Ukraine. ORCID ID: https://orcid.
org/0000-0002-2709-4348.
***** Ph.D. in Law, Associate professor, assistant professor of the Department of Constitutional and
Municipal Law, V.N. Karazin Kharkiv National University, Kharkiv, Ukraine. ORCID ID: https://orcid.
org/0000-0003-0034-8499.
****** Ph.D. in Law, Associate professor, assistant professor of the Department of State Building, Yaroslav
Mudryi National Law University, Kharkiv, Ukraine. ORCID ID: https://orcid.org/0000-0001-7904-
6906.
310
Oleh Martseliak, Svitlana Martseliak, Viacheslav Shamrai, Hanna Zubenko, Kateryna
Danicheva y Valeriy Velychko
Experience of legal support in electoral processes in Denmark, New Zealand and USA: possibility
of use in Ukraine
electoral legislation the positive experience of some countries, as well as to
identify possible ways to improve it.
Keywords: legal guaranteeing; elections; electoral legislation; election
system; electoral process.
Experiencia de soporte legal en procesos electorales en
Dinamarca, Nueva Zelanda y EE. UU: posibilidad de uso
en Ucrania
Resumen
El objetivo del artículo fue discutir ideas conceptuales sobre el estado
del soporte legal del proceso electoral en Dinamarca, Nueva Zelanda y
los Estados Unidos, así como identicar oportunidades para utilizar la
experiencia positiva de estos países en Ucrania. El artículo utiliza métodos
tales como el dialéctico, derecho comparado, sistema-estructural, formal-
dogmático, modelado y pronóstico. Cabe señalar que, a pesar de la capacidad
de los países de la UE para introducir su propia legislación electoral y
elegir el sistema electoral, el ejercicio del derecho de toda persona a votar
o ser elegido está garantizado mediante el cumplimiento de las normas
internacionales de organización y celebración de elecciones. Se concluye
que los países estudiados: Dinamarca, Nueva Zelanda y los Estados Unidos
generalmente se adhieren al estado de derecho y el proceso electoral está
bien organizado. Se arma que el debido sustento legal del proceso electoral
es una herramienta para la formación de legítimos órganos representativos
del poder estatal y de autogobierno local. Además, se propone implementar
en la legislación electoral de Ucrania la experiencia positiva de algunos
países, así como identicar posibles formas de mejorarla.
Palabras clave: apoyo legal; elecciones; legislación electoral; sistema
electoral; proceso electoral.
Introduction
It is well known that elections are the foundation of a democratic society.
Elections give the opportunity for voters to participate in governing the
state, elect leaders; strengthen the stability and legitimacy of the political
community (Teremetskyi and Chudyk, 2021). Elections provide political
education for citizens, promote social and political integration.
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Election systems have a profound eect on the future political life of the
corresponding country. Therefore, the choice of the election system is one
of the most important institutional decisions for any democratic state.
An important role along with the choice of the election system belongs to
the extent of the formation of the relevant legal guaranteeing of the electoral
process. Nevertheless we have to agree with the statement that: “Today,
there is a large discrepancy (inconsistency) between the actual system
and structure of activities in the eld of organizing and holding elections
to government bodies and those enshrined in the current legislation”
(Keshikova and Demeshko, 2021: 483). This thesis is also proved by the
provisions of the Art. 21 of the Universal Declaration of Human Rights
which states that:
The will of the people shall be the basis of the authority of government; this will
shall be expressed in periodic and genuine elections which shall be by universal
and equal surage and shall be held by secret vote or by equivalent free voting
procedure (Universal Declaration of Human Rights, 1948).
Besides, the UN Member States have agreed to abide by a number of
commitments regarding the organization and conduction of elections
and the protection of surage of their citizens (International Covenant
on Civil and Political Rights, 1966, Art. 25). According to the Art. 5 of
the International Convention on the Elimination of All Forms of Racial
Discrimination, States Parties undertake:
To guarantee the right of everyone, without distinction as to race, color, or
national or ethnic origin, to equality before the law... notably in the enjoyment
of political rights, in particular the right to participate in elections –to vote and
to stand for election – on the basis of universal and equal surage (International
Convention on the Elimination of All Forms of Racial Discrimination, 1965).
Thus, despite the fact that each country has the sovereign right to
choose how to act in elections, most of the developed world countries
pay considerable attention to improving national electoral legislation
and bringing it in line with international norms and standards. Thus,
international and legal standards of the countries that have common values
and fundamental legal principle snare the crucial mean to achieve the legal
unity (Chudyk et al., 2021).
1. Methodology of the study
The materials for identifying specic features of legal regulation of the
electoral process in Denmark, New Zealand and the United States were
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Danicheva y Valeriy Velychko
Experience of legal support in electoral processes in Denmark, New Zealand and USA: possibility
of use in Ukraine
the laws of those countries in the eld of guaranteeing people surage,
the practice of its application, analytical, statistical and nancial reports,
reference books, political and legal journalism, results of the polls and
online resource.
The methodological basis of this research is a set of general and special
scientic methods of scientic cognition. Thus, the dialectical method
was used to clarify the current status of legal guaranteeing of the electoral
process in some foreign countries, the comparative and legal method – to
determine the perspectives for the application of positive foreign experience
in Ukraine. The use of the systematic and structural method allowed us to
clarify the characteristic features of the electoral process in those countries.
Modeling and forecasting methods were used while developing and
formulating directions for the improvement of the electoral legislation of
Ukraine.
2. Results and Discussion
2.1. Legal regulation of the electoral process in EU countries
The Article 3 of the Protocol to the Convention for the Protection
of Human Rights and Fundamental Freedoms enshrines the right to
free elections, including the obligation of EU countries to “to hold free
elections at reasonable intervals by secret ballot, under conditions which
will ensure the free expression of the opinion of the people in the choice
of the legislature” (Convention for the Protection of Human Rights and
Fundamental Freedoms, 1950).
The Parliamentary Assembly of the Council of Europe has adopted a
number of Resolutions on elections and referendums in EU Member States.
In particular, the Resolution 1353 (2003) “On the Future of Democracy:
Strengthening Democratic Institutions” addresses the possibility of making
democratic decision-making processes more accessible and transparent by
“introducing or facilitating remote voting at national and regional levels…”
(Resolution of Parliamentary Assembly, 2003).
The Parliamentary Assembly of the Council of Europe called on Member
States in its Resolution 2390 (2021) “Transparency and regulation of
donations to political parties and electoral campaigns from foreign donors”
to “review their rules regulating nancial contributions to political parties
and nancial campaigns from foreign countries in order to prevent risks
related to non-compliance or illegal foreign nancial interference...”
(Resolution of Parliamentary Assembly, 2021).
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There is currently no single rating in the world that reects information
on the countries with the best electoral system, as well as the best legal
guaranteeing for the organization and conduction of elections. At the same
time, the international human rights non-governmental organization
“Freedom House” annually analyzes existing problems of the electoral
process, political pluralism and participation in the electoral process,
functioning of government in 195 countries.
In particular, the annual report “Freedom in the World 2020” analyzes
and evaluates people’s access to political rights and civil liberties in the
world countries (Annual Freedom in the World report, 2020). According
to this report, the best countries in 2020 with the highest permissible score
(40 points), which promote sustainable democracy and pay great attention
to supporting ecient and sustainable electoral processes by ensuring
free and fair elections, are such countries as: Australia, Canada, Denmark,
Netherlands, New Zealand, Norway, USA (32 points) (Annual Freedom in
the World report, 2020).
Countries denitely use various electoral systems, which dier from
one another, diering in the legal instruments and traditions, which are
the basis of the electoral system. However, the existence of adequate legal
guaranteeing of the electoral process in any country should be considered
as the guarantee for the implementation of fair and just elections, the
organization and conduction of the electoral process. Therefore, we want
to consider the state of legal guaranteeing of such foreign countries as
Denmark, New Zealand and the United States.
2.2. The current status of legal guaranteeing of the electoral
process in Denmark, New Zealand and the United States
Elections to the national parliament (“folketinget”), local elections (to
municipal and regional councils) and elections to the European Parliament
are held in Denmark. Referendums may also be convened along with
elections in order to consult with citizens directly on matters of national
interest.
Elections in Denmark are held on the basis of the Law “On Folketinget
(Parliamentary) Elections” of 27 August 2020, No. 1260 (Folketing
(Parliamentary) Elections Act, 2020), the Law “On Local and Regional
Elections” of 7 February 2019, No. 138 (Local and Regional Government
Elections Act, 2019), the Law “On Elections to the European Parliament” of
7 February 2019, No. 140 (Lov om valg af danske medlemmer til Europa-
Parlamentet, 2019).
Parliamentary elections are called by the monarch on the advice of the
Prime Minister, usually after four years, although pre-term election may
take place. 179 people are elected to the Danish parliament, who must be
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of use in Ukraine
exclusively members of the party. The peculiarity of the parliamentary
elections in Denmark is that the parties that hold seats in the parliament
automatically have the right to participate in the next elections. Parties that
received signatures from 1/175 of the valid votes during the last elections
(about 20,000 signatures) and registered in the Ministry of the Interior
and Housing at least 15 days before the election date are also eligible to take
part in the parliamentary elections (Folketing (Parliamentary) Elections
Act, 2020).
Elections to local councils (municipal or regional) and to the
European Parliament are held on xed dates. The proportional system of
representation on party lists is used on such elections.
Persons eligible for surage are automatically included in the electoral
roll on the basis of temporary or permanent residence. People without a
permanent place of residence, such as the homeless, can also vote. As a
general rule, such persons are included in the voter list in the municipality,
where they last had their registered address. Voter lists are prepared on
the basis of information contained in the civil status registration system.
Voters receive a ballot card by mail 5 days before the poll (Folketing
(Parliamentary) Elections Act, 2020).
Voters, who due to disability, bad health conditions or other similar
reasons, are unable to vote in the prescribed manner may apply for the
assistance required to vote. Voting assistance may be given in the form of
personal assistance and assistance to be provided during voting. Personal
assistance in voting is provided by two observers or appointed voters.
Instead of one of the observers or appointed voters, such a person may
request assistance in voting from a person of his or her choice. Assistance in
crossing out the ballot paper may be provided only if the voter can directly
and unambiguously indicate to those who provide assistance the list of
candidates or the candidate for whom he / she wishes to vote (Folketing
(Parliamentary) Elections Act, 2020).
Individuals in Denmark can vote early at any citizen service center
starting from Tuesday six weeks before the election day and no later than
the Friday before the election day. Persons abroad may cast their ballots in
advance at the Danish diplomatic mission or consular agency.
We should note the high legal culture of Danish citizens regarding
their attitude to the elections. Those who do not wish to vote for any of the
candidates or parties running in the elections may not tick and cast a blank
ballot. Formally, this ballot is invalid and will not be included in the results.
However, invalid ballots are included in the total number of votes and thus
aect the turnout. So, unlike citizens who stay at home and do not exercise
their right to come and vote, many Danish citizens return a blank ballot to
show that democracy is important to them.
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For example, the overall turnout in the elections on September 15, 2011
was 87.74%, with 3,579,675 casted votes, where 34,307 were invalid and
22,815 were empty (The Us Congress, 2011). In addition, a voter has the
right to replace the ballot if he / she has crossed out incorrectly or has
become invalid due to negligence (Folketing (Parliamentary) Elections Act,
2020).
There is a ban in Denmark on political campaigning on television.
According to the Art. 76 of the Danish Radio and Television Act, television
cannot broadcast advertisements for political parties, political movements
or elected members or candidates for elections, or advertise political
announcements from the time of the announcement of the elections or
referendum till the elections or referendum day. However, if the date of
the elections or voting is announced earlier than 3 months before they
start, the period without advertising begins no earlier than 3 months before
the elections or voting (Lov om oentlige veje m.v. LOV, 2014). Besides,
Danish law restricts the placement of election posters on public roads
(Bekendtgørelse af lov om radio- og fjernsynsvirksomhed LBK, 2019).
The name, address and telephone number of the individual or legal
entity who initiated the display of the election poster must be indicated
on the posted election poster. Information about the legal entity must be
supplemented by the name, address and telephone number of the individual
representing the legal entity.
Election posters that pose an immediate and specic threat to security
must be removed by the Highway Administration or the police immediately
after the issued order and no later than 24 hours. In this case, the individual
or legal entity that hung them pay the costs spent by the Highway
Administration and the police, the cost of repairing damage to the road tree
and equipment. If the election poster does not contain information about
the person who hung it, then these costs may pay the individual or legal
entity campaigning on the election poster (Bekendtgørelse af lov om radio-
og fjernsynsvirksomhed LBK, 2019).
According to the Danish Constitution, there are 5 circumstances when
a referendum can or should be held and the result of which is binding
(Danmarks Riges Grundlov (Grundloven), 1953). Members of the Danish
Parliament, as well as regional and municipal councils may also decide
to hold a consultative referendum (Lov om afholdelse af vejledende
folkeafstemning om Danmarks tiltrædelse af EF-pakken (Europæisk Fælles
Akt), 1986).
The main agency of state power that organizes the election process is
the Ministry of the Interior and Housing. The main responsibilities of this
agency in the eld of electoral process include: organizing the conduction
of the parliamentary elections, referendums, local and regional council
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Danicheva y Valeriy Velychko
Experience of legal support in electoral processes in Denmark, New Zealand and USA: possibility
of use in Ukraine
elections, as well as elections of Danish deputies to the European Parliament,
establishing detailed rules for inclusion in the electoral roll, preparation of
election reports for elected candidates if the elections are approved by the
Parliament, etc. (Ministry of the Interior and Housing, 2022).
The election commission is independent of the political process
and cannot receive instructions from the government or parliament.
Decisions of the election commission are not subject to appeal to any other
administrative agency (Vaalirahoitus).
New Zeland is a parliamentary democracy, which has historically held
free and fair elections, guaranteeing the realization of political rights and
civil liberties.
Legal guaranteeing of elections in New Zealand is based on: the Electoral
Act 1993, which introduced proportional electoral system in New Zealand
(The Electoral Act, 1993); Local Electoral Act 2001, which regulates local
elections and voting.
This provides sucient exibility in legislation to easily adapt new
technologies and processes as they are developed (Local Electoral Act,
2001); Election Access Fund Act 2020, which established the fund to
remove or reduce barriers to voting in general and local elections, when
people may face due to their disability (Election Access Fund Act, 2020);
The Citizens Initiated Referenda Act 1993, which provides for referendums
initiated by citizens, which will indicate the views of the people on specic
questions but will not be binding on the New Zealand Government (The
Citizens Initiated Referenda Act, 1993).
New Zealand has mandatory voter registration, but voting is not
mandatory. A person entitled to vote must be registered as a voter in any
constituency by submitting an application to the election commission for
being registered as a voter. Otherwise, he / she will be prosecuted.
Individuals must be registered under certain conditions in order to vote
in the New Zealand elections. The application for voter registration may be
submitted to the election commission in writing by lling in the appropriate
form or online (The Electoral Act, 1993).
Only after registration the person will be included in the publicly
published voter list. The election commission must deliver to this person
in person or send by mail a written notice of registration no later than 14
days after the registration of a person as a voter. In case of changing the
residence, a person must notify the election commission about the change
of residence address within two months. Having received the notication,
the election commission must: make changes to the list of changes in the
voter’s place of residence and provide conrmation to the voter of this
amendment. A person is subject to prosecution for the failure to notify of a
change of the place of residence (The Electoral Act, 1993).
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In addition to voting in person New Zealand provides dictation voting
services for people abroad, as well as for people in remote locations, for
the visually impaired or for people who cannot mark the ballot without
assistance. A person may be prosecuted with a ne not exceeding $ 1,000
for disclosing information that became known to a person during assistance
(The Electoral Act, 1993).
The Covid-19 pandemic, which has become an international public
health problem, has both demonstrated weaknesses in many of the world’s
health systems in 2020, and has aected all aspects of vital activity of
the state (Teremetskyi et al., 2021). That is why the clearance of election
procedures, the provisiov of the election in force majeure (as quarantine
and COVID-19) is of prime importance (Perezhniak et al., 2020). In terms
of preparing for the elections, New Zealand’s electoral legislation was
temporarily amended acting from 5 October 2020 until the end of voting
day (until December 1, 2020) and granted special voting right to all persons
in isolation or quarantine (Electoral Amendment Regulations, 2020).
Referendums have been used in New Zealand for more than a century
as a tool for public policy decision-making. Throughout the history of New
Zealand, the country has held 5 referendums initiated by citizens. However,
the results of those referendums were largely ignored by the government
(Roberts, n/y). The New Zealand parliament uses consultative referendums
to nd out what voters think about a certain usually controversial issue.
Thus, consultative referendums were held in 1992 and 2011 to ask: whether
the electoral system should be changed (Roberts, n/y).
The New Zealand election commission is responsible for holding
parliamentary elections and referendums in the country, for constantly
updating voter lists, promotes the compliance with electoral legislation,
and provides education to the public on electoral matters. The election
commission registers political parties and their logos, guides people to
comply with election legislation, helps the public to understand how to
register and to vote, allocates funding to parties to broadcast elections,
accomplishes vote tabulation and processing and timely publishes
accurate election results.
The election commission’s tasks are to manage the electoral system
impartially, eciently and in such a way as to promote participation
in parliamentary democracy, understanding of the electoral system
and related issues; to maintain trust in the administration of the
electoral system, to promote public awareness of electoral issues
through educational and information programs (New Zealand Election
Commission). The election commission develops and conducts an
informational and educational campaign for the public during every
election.
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of use in Ukraine
Advertising in New Zealand can be placed both on television and
on social networks. Such an awareness-raising campaign includes the
development of easy-to-read voting manuals for people with disabilities,
audio les, Braille les, New Zealand sign language videos, information
about registration and voting in 27 languages.
Such measures have led to an increase in general awareness of the
electoral process in the country. For example, the overall awareness of
the 2020 election process rose in 2017 from 52% to 72%, and information
campaigns helped to attract more than 11 million page views on the
election commission’s website (Report of the Electoral Commission on
the 2020 General Election and referendums, 2020).
New Zealand is constantly reviewing electoral legislation, introducing
a number of “target-oriented amendments”, including addressing
political party funding issues and the three-year term of the Parliament,
transparency of political donations and the ability for Maori to switch
between Maori and general voter lists.
The United States has a complex electoral system that is well
regulated at the federal level. At the same time, the US Constitution and
federal laws gave states wide freedom to organize and conduct elections
(U.S. Code).
Federal laws help to protect the right for Americans to vote and
make it easier for citizens to exercise that right. One of the major laws
in the United States is the Voting Rights Act of 1965, which prohibited
discrimination of voters on the grounds of race, color of the skin or
language minority, and provided the election materials in languages
other than English (The Voting Rights Act, 1965).
No one is required by law to vote in local, state or presidential
elections in the United States. Voting is a right in accordance with the
US Constitution (USC Ch. 205: National Voter Registration, 2015).
According to the National Voter Registration Act of 1993, there are
various ways to voting registration, in particular: while applying for the
right to drive a vehicle, while applying to all oces that provide state aid
or implement state programs by using letters (USC Ch. 205: National
Voter Registration, 2015).
Each U.S. state maintains voter registration lists for federal elections,
and the law requires states to keep voter registration lists accurate and
up-to-date. The law provides additional guarantees that registered voters
will be able to vote despite a change of address in certain circumstances.
For example, voters moving within a constituency or polling station
will retain the right to vote, even if they have not re-registered at a new
address.
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The Uniformed and Overseas Citizens Absentee Voting Act of 1986
improved access to voting for U.S. military personnel and their families,
and U.S. citizens living abroad by allowing them to register and vote by
mail (USC 20310, 2014).
Election laws of the United States ensures that people with disabilities
or conditional barriers have the opportunity to vote. Several federal laws
protect the voting right of Americans with disabilities, including:
1. The Americans with Disabilities Act (42 USC Ch. 126, 2010). This
law is applied to all aspects of voting, including voter registration,
choice of location and ballot stung on election day or early voting
(42 USC Ch. 126, 2010).
2. Voting Accessibility for the Elderly and Handicapped Act of
1984 (52 USC Ch. 201, 2015). This Act requires the introduction
of accessible polling stations for the elderly and people with
disabilities or the creation of alternative voting methods. For
example, voters with disabilities have the right to vote privately
without outside help, to have a polling station available for voters
with disabilities.
To this end, polling stations are equipped with wheelchair-accessible
voting booths, handrails on all stairs, voting equipment for the blind
or visually impaired, etc. If a person is handicapped, he / she can
seek help from a polling ocer or bring in someone to help him to
vote. In some states oer “voting on the sidelines”, when a polling
station ocer brings everything needed to vote in a car or voting is
accomplished by mail (52 USC Ch. 201, 2015).
3. The Help America Vote Act of 2002, which contains minimum
standards for voters’ education, registration, and ballots, allows the
formation of federal funds for the elections. This Act established the
US Election Promotion Commission (hereinafter – the Commission),
which is the national center for the exchange of information
on the administration of elections. The Commission develops
recommendations on the implementation of election legislation,
adopts recommendations on the voluntary voting system, accredits
testing laboratories and certies voting systems and maintains the
national form of voters’ registration by mail.
The Commission is also responsible for maintaining the national voter
registration form, for conducting research and managing the National
Electoral Information Exchange Center, which includes common practices,
voter information and other resources to improve the elections (Oce
of the Law Revision Counsel, 2015). The Commission submits an annual
report to the Congress, holds public meetings and hearings to inform the
public about its activities (Federal Election Commission).
320
Oleh Martseliak, Svitlana Martseliak, Viacheslav Shamrai, Hanna Zubenko, Kateryna
Danicheva y Valeriy Velychko
Experience of legal support in electoral processes in Denmark, New Zealand and USA: possibility
of use in Ukraine
US citizens have the right to elect candidates directly by popular vote.
However, the President and Vice-President are not directly elected by
the citizens. They are elected by the Electoral Board in accordance with
the US Constitution. Thus, residents of the respective states vote for the
presidential candidate, choosing the list of voters of this candidate. After
the citizens of a state has elected a list of voters, those voters formally elect
the President and Vice-President, casting their votes (U.S. Constitution,
1787). Each state receives as many voters as it has members of the Congress
(House of Representatives and Senate). Each state’s political parties choose
their own list of potential voters.
The Oce of the Federal Register coordinates the work of the Electoral
Board. The total number of votes, consisting of 538 voters, is equal to the
total number of representatives and senators currently constituting the
Congress. The number of voters on the state’s list is equal to the number of
US representatives plus two.
The number of state representatives is determined by considering the
population of every state in proportion to all other states. Accordingly, each
state receives a proportional number of representatives. The Government
conducts the national census every ten years to determine the population
of each state. When this happens, the state could potentially gain or lose
congressmen, aecting the number of voters known as the votes the state
will have in the Electoral Board (The Oce of the Federal Registe).
There is a “winner gets everything” system in 48 out of the 50 US states.
This system assigns the entire list of voters in that state to the candidate
who won the popular vote, regardless of how close the voting was in that
state. A presidential candidate who has won a constituency receives the
votes of that constituency. After each state has cast its votes, the votes are
tabulated and the President and Vice-President are appointed.
The Federal Election Campaigns Act of 1971 restricts campaign
contributions to presidential and congressional candidates and requires
candidates to report all money received and spent on their campaigns (Type
of contributions; 52 USC Ch. 201, 2015).
The Federal Election Commission (FEC) monitors the compliance with
campaign nance laws. It protects the integrity of the federal campaign
nance process by ensuring transparency and fair implementation and
administration of federal campaign nance laws (The Federal Election
Commission (FEC)). Thus, a person may donate $ 2,900 to the elections per
one candidate during the 2021-2022 elections. Goods (tools, equipment)
are also considered as contributions. For example, if someone donates a
personal computer to a campaign, the contribution is equal to the normal
market price of the computer at the time of contribution. Services (e.g.
advertising, printing or consulting services) are valued at the commercial
321
CUESTIONES POLÍTICAS
Vol. 40 Nº 74 (2022): 309-327
rate in eect at the time the services are provided (The Federal Election
Commission (FEC)).
Each US state determines the documents it accepts as proof of identity.
Most US states allow people to vote when presenting photo documents
(driver’s license, military ID, passport). In the absence of a valid document
with a photo, they oer to make a free voter ID with a photo. Some states
accept non-photographic IDs, in particular by providing birth certicates,
social security cards, bank statements and utility bills. Any registered voter
in the United States can vote by mail after receiving a ballot.
The Electoral Performance Index is the primary tool for assessing
election administration in the United States. This Index helps politicians,
election administrators and citizens to evaluate elections based on data,
to compare election results across states, to dene potential issues to be
addressed, to measure the impact of policy and practice changes, to identify
tendencies, to use data to determine resource needs and to implement
education of voter on the elections administration (Election Performance
Index, 2020).
Thus, the analysis of legal guaranteeing of the electoral process in
Denmark, New Zealand and the United States allows us to conclude that
despite the use of various electoral systems, the existence of dierent
regulatory legal acts regulating the electoral process, those countries adhere
to international standards for organizing and conducting elections, respect
the fundamental freedoms and are characterized by equality, universality,
political pluralism, trust, transparency and accountability of elections. At
the same time the main guarantee for ensuring free and fair elections in
those countries is to ensure the functioning of the eective judicial system
to protect the surage (Chudyk et al., 2022).
Conclusions
The study of specic features of legal guaranteeing of the electoral
process in Denmark, New Zealand and the United States allows us to make
the following conclusions:
1. It has been concluded that the realization of the right to vote or to be
elected by everyone is ensured through the existence and observance
of international standards for the organization and conduction
of elections. At the same time, the sovereign right of each state to
introduce its own electoral legislation and choose the electoral
system is respected.
The indicated international electoral standards are mainly sectoral
principles of objective surage and contain both a statement of the
322
Oleh Martseliak, Svitlana Martseliak, Viacheslav Shamrai, Hanna Zubenko, Kateryna
Danicheva y Valeriy Velychko
Experience of legal support in electoral processes in Denmark, New Zealand and USA: possibility
of use in Ukraine
mandatory content of the relevant fundamental requirements and
recommendations for their implementation. Such standards are the
system of minimum requirements for national electoral law and law-
enforcement practices for conducting elections. One cannot speak
about the existence of democratic elections without adherence to
these standards.
2. A comparison of data from dierent world rankings (in particular,
“Freedom in the World in 2020”, “Rule of Law in 2020”, “Global
Open Database Index”) allowed us to conclude that Denmark, New
Zealand and the United States generally adhere to rule of law, and the
electoral process is organized at the appropriate level. The stability
and reliability of election legislation is the key factor.
3. The authors of the article have focused on specic features for the
formation of voter registers in Denmark, New Zealand and the
United States, the use of information systems, conducting election
campaigns under strict supervision and control, possibility of early
voting, letter voting and technology voting (in particular, through
the use of telephone dictation for people abroad or with visual
impairments and during quarantine), conducting informational
and educational activities, continuous improvement of election
legislation.
4. Analysis of legal regulation of the electoral process in Denmark, New
Zealand and the United States has led to the conclusion that proper
legal guaranteeing of the electoral process is a tool for the formation
of legitimate representative agencies of state power and local self-
governments.
On this basis and in order to improve the current electoral legislation
of Ukraine, we suggest to implement those innovative provisions into
Ukrainian legislation that have already proven themselves in those
countries, namely: assigning an important role to local authorities during
the elections, establishing their proper cooperation with public authorities;
supervision and control over the nancing of election campaigns; ensuring
equality of all voters, including persons with disabilities; early voting; voting
by mail, as well as voting using the telephone dictation service for people
being abroad or with visual impairments and during quarantine; existence
of a developed information election system, conducting an educational
campaign for the public; banning political campaigns on television and
imposing restrictions on the placement of public election posters on the
roads; accelerating the development of information systems, as well as
information and analytical services of elections, concluding agreements
on technical cooperation with leading private IT companies under the
supervision of the Ministry of Justice.
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