What were the claimants demanding?

The claimants sought a court ruling on the violation of two electoral principles: universality (the establishment of polling stations abroad) and the secrecy of voting at so-called electronic polling stations.

What does the court examine at the stage of admission of the claim?

At this stage of constitutional review, the constitutionality of the legal provisions and elections is not scrutinized. The Constitutional Court decides whether the case at hand falls under its jurisdiction (adjudication) or that of another constitutional institution.

The principle of universality

The dispute was regarding the issue of insufficient polling stations abroad. The claimants argued that the CEC was obligated to ensure the participation of citizens living outside Georgia in the elections.

According to the court, the claimant failed to prove that:

• The state had the possibility to open additional polling stations abroad;
• In countries and cities where Georgia does not have a diplomatic representation, the CEC and political parties had the resources to appoint members of district commissions.

The court placed the burden of proof solely on the claimants in this part of the dispute, when it would have been more logical to request a response and information from the CEC regarding state resources.

The principle of secrecy of ballot

Based on the specific provisions of the electoral law, the general courts stated that the principle of secrecy only meant not revealing whom the citizen voted for, and the responsibility for maintaining this secrecy rested with the voter.

The claimants argued that the secrecy of the vote should be guaranteed in a way that an ordinary voter (without specialized training) would have no difficulty upholding it. They further contended that a breach of secrecy means not only revealing who a person voted for but also who they did not vote for.

The Constitutional Court had to address two questions in this dispute:

• Whose responsibility is to observe the principle of secrecy.
• What the violation of secrecy entails.

To answer these questions, it had to rely on the definitions provided in the decisions of administrative bodies and general courts, the normative content they attributed to the appealed norms.

The court failed to do this. In its view, the problem identified by the claimants related to the actions of the election administration (such as choosing the ballot and/or markers), not the content of the contested provisions; In the court’s opinion, assessing the constitutionality of this action falls outside its jurisdiction. However, the reality is different: the Constitutional Court failed to recognize the true essence of the dispute and its role in the process.

Therefore, the court's reasoning does not adequately address the arguments presented in the case and fails to examine the reasons that raised doubts about the constitutionality of the electoral provisions and the elections held based on them.

What should the Constitutional Court have considered at this stage of the case?

In 2024, electronic voting technologies covered around 90% of voters. This marked the first instance in which the annulment of elections was discussed in court due to a large-scale breach of the principle of secrecy. Accordingly, for the first time, the general courts had to assess whether deficiencies in the technical elements used during the elections, like the thickness of the ballot paper, the sharpness of the marker ink, and the size of the envelope frame, led to a violation of the principle of secrecy.

23 out of 24 first-instance courts and two appellate courts ruled that the provisions of the electoral law (1) guaranteed the protection of the principle of secrecy, and (2) that the CEC's practices were not in contradiction with these provisions. According to them, the provisions placed the responsibility for ensuring secrecy not only on the election administration but also on the voters.

The general courts interpreted the challenged provisions in such a way that, in this case, the voter was held responsible for maintaining the secrecy of the vote, even though the problem stemmed from the actions of the election administration. This is what the claimant contested.

Under these conditions, the Constitutional Court had to determine whether the content of the disputed provisions, as assigned by the general courts, was violating the Constitution.

In its ruling, the Constitutional Court noted that the claimants were focusing on the practice of the election administration and not on the provisions governing those practices. For instance, the court states that the claimant's lawsuit focuses solely on the actions of the election administration, specifically the determination and use of election equipment, and this is what is appealed to the Constitutional Court. However, this doesn’t constitute the truth. The President's claim emphasizes that the appeal challenges “the normative content stipulating that a breach of secrecy does not include disclosing who the voter did not vote for, as well as the normative content that places the responsibility for maintaining voting secrecy solely on the voter and which does not oblige the Central Election Commission to ensure voting procedures uphold the principle of secrecy and creates the possibility of violating the secrecy of voting due to the failure to foresee and take into account the technical characteristics of the ballot paper, frame-envelope and special marker”.

Although other parts of the claim focused on the actions of the election administration, the purpose was to outline the reasons behind the general courts' assignment of specific normative content to the provisions. No one asked the Constitutional Court to evaluate the elections conducted with the technologies or faulty materials chosen by the CEC, nor to assess whether marker traces on the reverse side of the ballot violated secrecy. Instead, the request was to determine who was responsible for violating secrecy under the Constitution and what constituted a breach of secrecy.  In other words, the Constitutional Court was asked not to determine the facts, but to examine the constitutionality of the legal provisions that determined these facts.

The Constitutional Court avoided discussing the claims raised in the dispute and refused to interpret the Constitution, which it could have done had it accepted the claim for full consideration.

Ultimately, dismissing the claim rendered it impossible to interpret the content of the constitutional provisions - the principles of ballot secrecy and universality of elections and to resolve whether the elections conducted on the basis of these election provisions were in accordance with the Constitution. Unfortunately, the court did not acknowledge its role in this dispute.