Good Reforms Meet Bad Politics:
A Looming Electoral Crisis in Albania

Published in TheMonkeyCage (now part of the Washington Post) on 12 June 2013.
Republished in Balkan Insight.

Continuing our series of Election Reports, the following Albanian pre-election report is provided by Skye Christensen, an international election consultant who has worked on electoral dispute resolution for the United Nations Development Program in Albania. The views expressed in this post are solely those of the author, acting in his personal capacity, and do not represent the views of the United Nations.

*****

Albania will go to the polls on 23 June. The vote will not only determine its next legislature and government (Albania has a parliamentary system), but also its EU integration prospects. Though Albania has a history of dubious elections, these polls are fraught with new tension pitting rule of law against the need to hold elections.

For the uninitiated in Albanian political history, Albania has made remarkable progress since totalitarian dictator Enver Hoxha, who ruled from 1946 to 1985, had his name written on the sides of mountains, his political opponents killed and their families imprisoned. Today the capital Tirana boasts a buzzing café culture to rival Istanbul, the economy is growing at 3%, and the country has seen the periodic change in government through elections.

When polls were called for 2013, the politicos of Tirana had a strong hand to impress their EU colleagues with the maturity of their new order. European observers had praised their new electoral law, developed with outside help and amended by parliamentary consensus in 2012. The law created a more multi-party electoral commission, and a specialised electoral court (confusingly named electoral ‘college’) to deal swiftly with any disputes that might arise.

This progress started to unravel in April 2013 when the Socialist Movement for Integration (SMI) defected from the ruling coalition and joined the opposition Socialist Party (SP). This political change upset the careful balance in the Electoral Commission, potentially allowing the opposition to control critical electoral mechanics such as the invalidation of votes and the declaration of results.  The ruling party, in retaliation, promptly discharged the SMI-nominated member of the election commission, replacing him with one of their own. By most readings this was an illegal act since commission members cannot be removed by parliament, and unjustified since the members are in theory independent of the parties. In response, the three opposition nominees resigned one by one, leaving the commission with only government nominees remaining. A joke began to circulate in Tirana’s cafes about the election commission ordering pizza: “Hello it’s the electoral commission. We’d like to order 7 pizzas… er, make that 6… uh, no make it 5, …um just 4 actually.”

Because the electoral code carefully mandates that a weighted majority at the commission is essential to approve certain types of critical decisions, the commission cannot pronounce results. The polls will go ahead, the votes can be counted, but it will not legally be possible to declare any winners officially.

Diplomatic missions have sought to intervene, to fix the system that their own advisors helped to create. After rounds of encouraging the parties to reconstitute the electoral commission, the US State Department has been suggesting that the specialised electoral court may be able to take over the role of the commission and release the results themselves. This is either optimistic thinking or lacks close reading of the law (Art 145.2 in particular). The electoral code seems to prohibit the electoral court from taking over such power when the commission lacks quorum – and instead is obliged to refer any such cases back to the commission, creating a vicious circle and a legal dilemma that would delay the results indefinitely. If the court were to go ahead and judge such a case, the opposing party will have strong legal justification to cry foul. Though the electoral court’s decisions are not able to be appealed, the opponents could take their case both to the streets and to the European Court in Strasbourg. The constitutional court, the highest judicial body, could solve the problem by striking down this aspect of the law, but it has previously declined to get involved in electoral matters.

What makes this curious situation even more surprising is that the opposition SP seems to have nothing to gain by their boycotting of the commission. Many observers predict that the SP-led coalition will take the majority of seats and form the next government, and thus would want the legitimacy of a clean process rather than the contested legal quagmire that is likely to result if the commission remains unfilled. The SP has also left the governing party in charge of critical decisions in the electoral process with the possibility of affecting the counting. Either the observers or the SP are misreading that party’s support, or more likely the SP didn’t understand the ramifications of their boycott until it was too late to turn back without losing face.

When will the brinkmanship end? Some observers see an 11th-hour deal on the cards where the opposition decides to reconstitute the commission only if it’s clear they are winning. Such a deal would not be strictly legal unless parliament is reconvened, but may be politically workable. It would leave the international community choosing between complimenting the democratic process or criticizing violations of the rule of law. Others see a contested election scenario where results are declared on questionable legal grounds by either the commission or the court and one or both of the largest parties protest. Either of these scenarios will weaken Albania’s EU ascension position, but the threat of large or even violent protests will be greatest if the electoral commission is still several pizzas short of a quorum on June 23rd.

Originally published in The Monkey Cage