Martial Law: Can Elections Be Postponed?

Ukraine's constitution prohibits elections from being held while the country is under martial law, which was imposed following Russia's invasion in February 2022. As a result, the country's presidential and parliamentary elections have been postponed, with no new dates set. However, President Volodymyr Zelenskyy has expressed willingness to change the law to allow for elections, stating that there is no need to spend years waiting [for elections] once martial law is over. The extension of martial law and the postponement of elections have sparked debates and raised questions about the legitimacy and democracy of the process, as well as the safety of voters and the fairness of the election.

Ukraine's constitution prohibits elections during martial law

The Ukrainian constitution states that the president's five-year term does not automatically end after five years, but only when a new president is elected. This means that Volodymyr Zelenskyy, whose term ended in May 2024, remains the legitimate leader until a new election can be held. The constitution also extends the authority of the Verkhovna Rada, the national parliament of Ukraine, until the first meeting of the newly elected parliament after the cancellation of martial law.

The practical challenges of holding elections during a war are significant. Ukraine has faced issues such as the occupation of its territories, the destruction of voting stations, and the displacement of millions of citizens. These factors make it difficult to ensure a fair and secure electoral process. Security concerns, campaigning difficulties, and the cost of elections are also barriers to holding elections during martial law.

Despite these challenges, Zelenskyy has expressed a willingness to change the law to allow for elections. However, this move has faced opposition from election and parliamentary officials, who argue that it would be impossible to hold fair and democratic elections during the war. The constitutional court may be asked to rule on the timing of future elections, but as of now, Ukraine's constitution prohibits elections while the country remains under martial law.

Elections can be held this year if martial law ends

Ukraine's constitution prohibits elections from being held while the country is under martial law. The constitution provides for the extension of the term of office of the President, Parliament, and other authorities until a new leader is elected. The country's Western allies are pressing Kyiv to hold elections in 2024 despite the war.

Ukrainian President Volodymyr Zelensky has stated that presidential and parliamentary elections could take place this year if negotiations bring an end to the "hot phase" of the war with Russia, allowing for the lifting of martial law. He added that the lifting of martial law would pave the way for Ukraine's Parliament to set a date for elections.

Zelensky's term as Ukraine's president was supposed to end in May 2024, but the ongoing war has delayed both presidential and parliamentary elections. Parliamentary elections, initially set for October 29, 2023, were also delayed. Under Ukraine's constitution, Zelensky must continue serving as president until a new leader is elected.

Even if martial law is lifted and Ukraine is completely liberated, the deputy chairman of the Central Election Commission, Sergii Dubovyk, believes that preparations to conduct elections in accordance with international standards may take up to six months. Currently, the Ukrainian government does not control 33% of voting stations, which have either been destroyed or are under Russian occupation.

Holding elections under martial law would also present significant challenges. Election officials have stated that even if martial law is lifted, the preparations for conducting elections in accordance with international standards would be challenging. The country's Western allies are pressing for elections to be held in 2024, but it is unclear if the conditions will allow for it.

Elections under martial law will lack legitimacy

Ukraine's constitution prohibits holding elections under martial law. However, President Volodymyr Zelenskyy has expressed his willingness to change the law to allow for elections. This has sparked debates about the legitimacy of elections held under such circumstances.

Zelenskyy's term as Ukraine's president was supposed to end in May 2024, and an election was expected to be held in March or April of that year. However, due to the ongoing war and martial law, the parliament postponed the vote. As a result, Zelenskyy has remained in office, with legal experts interpreting the constitution to mean that he must continue his duties until a new head of state is elected.

Holding elections under martial law presents several challenges and concerns about their legitimacy. Firstly, there are practical difficulties, as Ukraine does not control all voting stations, and many have been destroyed or are under Russian occupation. Restoring the electoral infrastructure and ensuring secure voting conditions during wartime would be incredibly complex.

Moreover, active-duty Ukrainian soldiers fighting on the front lines would face immense obstacles in participating in an election. The right to vote and stand for election is a fundamental democratic principle, and restricting this right indefinitely under martial law could lead to concerns about the legitimacy of any election held.

Additionally, Ukraine's international commitments further complicate the situation. As an aspiring liberal democracy seeking membership in the European Union and NATO, Ukraine must uphold democratic values and norms. Cancelling or postponing elections indefinitely could be seen as a violation of international covenants and treaties, such as the International Covenant on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms, which Ukraine has ratified. These treaties emphasize the obligation to hold free and regular elections, and deviating from these standards could undermine the legitimacy of any election held under martial law.

Practical and security obstacles to holding elections

Ukraine's constitution prohibits holding elections under martial law, and election officials have expressed doubts about holding elections during wartime, citing the potential lack of fairness and democracy. The country is focused on its defence and liberation from Russian occupation, which has resulted in the destruction of voting stations and disruption of voting infrastructure across the nation.

Even if martial law is lifted, Sergii Dubovyk, the deputy chairman of the Central Election Commission, believes that it could take up to six months to prepare for elections that meet international standards. The Ukrainian government does not currently control 33% of voting stations, which have either been destroyed or are under Russian occupation. Restoring electoral infrastructure and ensuring the security of voting systems and assets are critical challenges.

To ensure election security, the U.S. Election Assistance Commission (EAC) and the Cybersecurity and Infrastructure Security Agency (CISA) provide guidelines, tools, and resources to protect physical and cybersecurity. These include best practices for software installation, password management, physical access logs, and personnel accountability. CISA also offers no-cost trainings to enhance the security and resilience of election infrastructure, helping officials prepare for denial-of-service (DoS) incidents and other cyber threats.

In the case of Ukraine, the security obstacles are heightened by the ongoing war and the need to safeguard a potential ceasefire. French President Emmanuel Macron estimated that 500,000-800,000 soldiers would be required to maintain peace during elections in Ukraine.

Postponing elections during wartime is common

Canada also has a history of postponing elections during wartime. During the First World War, Canada entered the conflict in 1914, and parliamentary elections were due in 1916. However, the government decided to delay the elections until the end of the war, aiming to form a coalition government, similar to what had been done in Britain. Canada continued this practice during the Second World War, even though the country itself did not experience direct combat on its territory.

In more recent times, Ukraine has faced the dilemma of whether to hold elections during its war with Russia. Under the Ukrainian constitution, elections cannot be held under martial law, and the country's parliament and president remain in power until a resolution is reached. Despite this, Ukrainian President Volodymyr Zelenskyy has expressed a willingness to change the law to allow for elections, even stating his readiness to run for re-election during the war. However, election officials and legal experts disagree, citing the practical and legal challenges of holding free and fair elections during a full-scale invasion, with many voting stations destroyed or under Russian occupation.

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