By: iryna hnatiuk
January 31 2024
Presidential elections in Ukraine during war: What do the public, allies, and the law say?
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Source: Reuters/Composite by Matthew Hunter
2023 and 2024 were supposed to be election years for Ukraine. The term of the Parliament elected in 2019 ended in 2023, and the presidential term of Volodymyr Zelenskyy expires in March 2024. However, the invasion of the Russian Federation and the full-scale war in Ukraine have led to adjustments in the election schedule.
Ukraine is currently under martial law, which prohibits holding parliamentary elections, so there were no discussions on the subject in media or political circles. As for the presidential elections, there is less clarity in the legislation. Therefore, as the date of potential elections draws closer, the interest of the press, Ukrainians, and foreign politicians grows. Opinions and statements emerge, but they all boil down to the same questions: will there be elections, will they be legitimate, and who is demanding them?
What does the law say?
Since the morning of February 24, 2022, Ukraine has been in a state of war and is thus under martial law. Article 19 of Ukrainian martial law states that "during martial law, the election of the President of Ukraine and the elections to the Verkhovna Rada (Parliament) of Ukraine, the Verkhovna Rada of the Authonomy Republic of Crimea, and local self-government bodies are prohibited."
While laws can be changed, this doesn't mean that elections are definitely not on the table. What cannot be changed is the Constitution of Ukraine, and this is where doubts begin to surface, because the Constitution does not prohibit Presidential elections. Article 64 of the Constitution only states that certain restrictions on rights and freedoms may be established during martial law. It also lists freedoms that can not be restricted, including the right to life, dignity, and personal inviolability. The right to vote is not among them.
Article 83 of the Constitution also stipulates that "in case of the expiration of the term of powers of the Verkhovna Rada of Ukraine during martial or emergency state, its powers shall continue until the first session of the Verkhovna Rada of Ukraine elected after the cancellation of martial or emergency state." This means that if the term of the elected parliament ends during martial law, it continues to work until the first session after the cancellation of martial law.
Many constitutionalists believe that a similar logic applies to the President of Ukraine. Constitutional law experts refer to the constitutional principle of institutional continuity. "The Constitutional Court concludes that the powers of any state body continue until its new composition is formed or elected," Volodymyr Fesenko, the chairman of the board of the Center for Applied Political Studies "Penta" commented to Logically Facts. He added, "The powers of the president of Ukraine will continue until a new president is elected."
The requirements for the electoral process are clearly outlined in the Constitution. First and foremost, it stipulates that the right to run an election campaign is equal and elections are free. However, Ukrainian legislation allows the authorities, during a state of war, to control media, suspend their operations, and impose military censorship. According to the same law, conducting mass events, including peaceful gatherings, debates, and demonstrations, is prohibited. Therefore, meeting these constitutional requirements is not possible. "Such an election would be far from an act of democracy during the war," stated Olga Aivazovska, head of the board of the Civic Network Opora, a Ukrainian elections watchdog.
Vote for democracy's sake
Apart from formal elections, democracy is about the rule of law, ensuring rights and freedoms, the independence of the judiciary, and many other fundamental principles. "There is a narrative that Ukraine will be a 'worse democracy' than Russia if it does not hold elections now. But the Putin regime is authoritarian," says Fesenko. "This regime relies on centralized control over the country and social institutions, repression against opposition, limitation of political rights and freedoms, and strict control over the information sphere. Even the ideologist of this regime, Vladislav Surkov, called it 'managed democracy.'"
Fesenko refers to the Russian opposition leaders who are currently in prison and the criminal charges used to silence criticism of the Russian aggression against Ukraine. "There are no genuine democratic elections in Russia and no real competition, and the winner is known in advance,” he adds.
What about demands from Western allies?
Another common narrative implies that Western allies of Ukraine "strongly recommend" holding the elections. However, analyzing publications that reported "demands from Western partners," it turns out that there were only two statements.
The first was in May 2023 from the President of the Parliamentary Assembly of the Council of Europe (PACE), Tony Cox. He said that Ukraine must hold elections even in wartime, or the country's democracy will be questionable. However, just a few days later, Tony Cox corrected himself in a conversation with Opora’s head, Olga Aivazovska. Mr. Cox said that only Ukrainians should make such decisions and that holding elections during the war would be impossible.
Media published information that Western officials are pressing Ukraine to hold elections despite the war. (Source: The Washington Post, Visegrad Insight / Screenshots)
Another statement that gained much more publicity was from the Republican American Senator Lindsey Graham in August 2023, who said he "really wants this country to have free and fair elections, even during an attack on it." Aivazovska told Logically Facts that she considers such accusations an attempt by Republicans to justify blocking weapons supplies to Ukraine.
There were no more statements from any Western officials. No other Western officials, presidents, or prime ministers have publicly made statements concerning presidential elections in Ukraine.
What does Zelenskyy say?
Opinions circulate in the Ukrainian corner of X (formerly Twitter) that Volodymyr Zelenskyy wants to secure a second presidential term while he still has a good chance. After the war, these chances may decrease; the results of the latest sociological surveys indicate that, сurrently, 62 percent of Ukrainians trust the President, while 18 percent do not. In December 2022, these figures were 84 percent and 5 percent, respectively.
However, Zelenskyy himself has never stated the necessity of holding elections right now. In his video address on November 6, 2023, he said, "Now, in wartime, when there are numerous challenges, it is absolutely irresponsible and frivolous to introduce the topic of elections into society."
The opposition also considers elections during wartime harmful. Oleg Syniutka, a representative of "European Solidarity," an oppositional party whose leader, Petro Poroshenko, is the main electoral competitor of Zelenskyy, noted that elections under any conditions mean political competition. "Is it what Ukraine needs now? I think it's not the case," added Syniutka.
Former Ukrainian prime minister Yulia Tymoshenko said in an interview with The Washington Post that holding elections during wartime would lead to Ukraine losing the war, as internal political disagreements — differences that occur naturally in a democratic society — would shatter the national unity needed to defeat Russia. "The price of holding elections in wartime will be a lost war," Tymoshenko said.
"If the Presidential Office indeed planned to hold elections, preparations and the creation of legal conditions would have started already," noted Fesenko. "None of this is happening. The state budget for the next year doesn't allocate money for holding elections." The legal regime of martial law has also been extended.
Sergiy Dubovik, Deputy Chairman of the Central Election Commission, confirmed to Logically Facts that the commission had not received any information about possible preparations for the presidential elections in March 2024.
Why can't Ukraine be the first?
Even if the Ukrainian Parliament changed the law and the date of elections remains the same, there are other issues that require consideration.
Currently, the country is unable to provide the necessary safety conditions required for the electoral process, such as protecting polling stations from missile strikes and drone attacks. Article 3 of the Constitution of Ukraine states that the life and health of people are the highest social values. Ukraine cannot risk the lives of millions of its citizens when Russia deliberately kills civilians.
If polling stations are closed during an air raid warning, the elections may not occur. For example, the launch of a MiG-31 indicates a threat of a missile attack across the entire country. MiG-31K is a potential carrier of the hypersonic missile Kh-47M2 Kinzhal, which is difficult for Ukrainian air defense to intercept. The declared range of these missiles is thousands of kilometers; no polling station will operate as long as one is in the sky.
There are also currently around one million people serving in Ukraine's military, although not all are on the front lines. Zelenskyy has said, "We need the military to be able to vote. They are defending this democracy today, and not giving them this opportunity because of the war is unfair. I was against the elections only because of this issue."
The situation with refugees is similar. "According to the latest data the Ministry of Foreign Affairs has provided to Opora, there are over 8 million Ukrainians abroad, and about 4 million are voters," says Olga Aivazovska. Before the full-scale invasion, only about 400,000 Ukrainians voted abroad. The voting process occurs in embassies and consulates, mainly in capitals. Zelenskyy stated that "ensuring refugees' expression of will requires significant resources and polling stations, which Ukraine does not have in such numbers."
Potentially, the so-called "elections on a smartphone" could help address these issues. A bill on this matter was registered in the Verkhovna Rada back in 2011. In 2020, the Ministry of Digital Transformation intended to pilot electronic voting but faced resistance from civic organizations. It emphasized that the country is unprepared for such a procedure, and the risk of technical failures and hacker attacks is too high.
Recently, the largest mobile communication and internet operator in Ukraine, "Kyivstar," fell victim to a cyber attack that disconnected subscribers from services for two days. A similar incident on election day would make conducting elections impossible.
Oleksiy Koshel, the head of the Committee of Voters of Ukraine, cites cyber interference risk, particularly from Russia, among the risks of electronic voting in the current situation. However, he believes the key obstacle is the potential non-acceptance of the election results by voters. About 68 percent of Ukrainians currently residing abroad trust electronic voting.
"If a part of society does not accept the election results, we will get a semi-legitimate president. Introducing electronic voting can be an experiment—for ships on distant voyages and perhaps even for first-time voters to encourage their participation in elections. But by no means in the general format," adds Oleksiy Koshel.
He notes that Ukraine can use the experience of postal voting. Opora is now conducting an experiment to see how such a format would work, but it is not ready to be implemented.
Who is interested in elections in Ukraine?
As in most countries, elections in Ukraine have been a primary source of societal division and a stage for conflicts. Ukraine experienced the Orange Revolution, which emerged from the 2004 presidential elections, and the lingering remnants of the division that arose during the 2019 elections are still noticeable. Now, when the war fatigue is at its peak, the economy is worsening, and unemployment is rising, elections will become a dangerous test for Ukrainian society. In times of such stress, people naturally seek culprits and scapegoats, and during an election campaign, this search can become internalized.
Russian propaganda is already promoting disinformation about the political ambitions of the Commander-in-Chief of the Armed Forces of Ukraine, Valeriy Zaluzhnyi, and his desire to vie for the presidential seat. This has created a narrative about a split in Ukraine's military-political leadership. Zelenskyy and Zaluzhnyi, leaders of a warring country, are being transformed into political rivals.
Ukrainians understand the risks and are not inclined toward holding elections. According to recent polls, 80 percent of citizens believe now is not the time. A petition against holding presidential elections has also been registered. The first month of 2024 has passed, and there are no signs of preparations for elections in Ukraine. However, the topic will periodically resurface as long as the war continues.