Article 160 regulates invalidation of elections in voting centres and Article 161 regulates the holding of repeat elections if the CEC’s determination of invalidity “influences the allocation of mandates in the electoral zone or nationwide”. Article 161(2) provides that “A case when the number of voters who have voted or could have voted in the voting centre or centres declared invalid is equal to or greater than the number of voters required for the allocation of one seat in the respective electoral zone, based on the calculation of valid votes in the electoral zone, performed in accordance with Article 162, shall be considered as having an impact on the allocation of seats for the Assembly.” The intent of this rule appears to require a repeat election “when the number of voters who have voted or could have voted in the voting centre(s) declared as invalid” is of a sufficient quantity to either change (1) the resulting quotients or (2) ranking of resulting quotients and such change would shift the allocation of a mandate from one electoral subject to another electoral subject. If this is the intent, it is not clearly stated in the English translation. The text should state very clearly that the “number of votes required for the allocation of one mandate in the electoral zone” has to be determined by considering potentially new quotients and a re-ranking of quotients. In other words, one cannot simply look at a difference in vote totals for the electoral subjects. Although this would be possible in a simple election between two contestants, it does not automatically apply to proportional representation formulas which rank quotients that result from a series of divisions. This is particularly true for the Code, which uses D’Hondt divisors (1, 2, 3, 4, 5, et seq.) for the initial allocation to electoral subjects and Sainte-Laguë divisors (1, 3, 5, 7, 9, et seq.) for allocating mandates to political parties within a coalition. The Venice Commission and the OSCE/ODIHR recommend that Article 161 be amended to state more clearly and in greater detail the application of the rule for repeat elections.
