Ukraine Can Endorse, Uphold Democracy by Holding Elections

The legal labyrinth

Formally, Zelenskyy’s term as president ended on May 20. However, since then, no elections have been called. This is not entirely arbitrary — since the country has been under martial law since the Russian invasion in February 2022.

With the end of Zelenskyy’s allotted five years in office, controversy has arisen over whether Ukrainian law prohibits new elections under current martial law, or whether it mandates new elections.

According to a Carnegie Endowment analysis, the Constitution does not explicitly prohibit presidential elections under martial law. However, it does determine that the president should continue to serve only until a successor is elected while stipulating that the presidential term is limited to five years (Articles 108 & 103).

Some Ukrainian jurists point out that the absence of a mechanism for extending a president’s term is a purposeful omission — intended to prevent abuse of power. Nonetheless, Ukrainian electoral law forbids the holding of elections during martial law.

Martial law & elections

After all, as an Atlantic Council review comments, for any election to take place in Ukraine, the authorities would have to ensure the safety of millions of voters and thousands of election officials at polling stations.

Furthermore, the hundreds of thousands of Ukrainian men and women currently serving in the armed forces would be unable to participate in a wartime election, either as voters or as candidates, as would millions of Ukrainian refugees living outside the country’s borders.

But the apparent complexity of elections does not resolve the question of how to contend with a potentially indefinite extension of a presidential term in times of extended hostilities.

Significantly, Zelenskyy himself explicitly admitted, that “voting could take place during wartime if partners shared the cost, legislators approved [it], and everyone got to the polls."

Internal rumblings

There are those who maintain that Zelenskyy is currently functioning as an acting president and will continue to do so until the next election. However, his opponents assert that, by law, it is the Speaker of the Ukrainian parliament, who — as the Constitution deems — should become acting president if the president is no longer able to fulfill his duties — as should be the case, they argue, if his elected term expires

In fact, there is a precedent in recent Ukrainian history for this process in which the Speaker did indeed replace an elected president to become acting president. In 2014, then-President Viktor Yanukovych was forced to flee the country in the face of public protests, following which the then-Speaker took over as president until the winner of the subsequent presidential election, Petro Poroshenko, took office.

Some believe that Ukraine’s Constitutional Court could resolve the impasse but Zelenskyy's office has been unwilling to involve it. This has raised suspicion that Zelenskyy has intentionally blocked allowing the Court to rule regarding the need for elections, or the appointment of the Speaker as acting president.

Indeed, all of this is the backdrop to growing, if rarely reported, domestic rumblings, questioning the legitimacy of Zelenskyy's continued incumbency given the expiration of his elected term.

Collapsing consensus?

Although the current parliamentary speaker, a member of the pro-Zelenskyy party, is not seeking the presidency and has reportedly affirmed that Zelenskyy will be acting president until elections take place, this may not be a permanent decision.

Indeed, parliament is no longer solidly behind Zelensky. Thus, even the head of Zelenskyy’s parliamentary faction declared that the political consensus, that originally existed when Russia’s invasion began, has collapsed.

Accordingly, it is conceivable that a different Speaker could be installed, who would take over as acting president.

The debate on the legal legitimacy of the current presidency has spilled over beyond the country’s borders to impact pro-Zelenskyy supporters in the GOP.

Thus, influential Sen. Lindsey Graham, R-S.C., urged the Ukrainian government to conduct elections, despite the war, to underscore its commitment to democratic values, declaring: Holding democratic elections during wartime would be seen as a bold and consequential decision … [that] speaks to [a] vision of a free and democratic Ukraine both today and in the years to come.”

So no matter what the pro-and-cons of the opposing positions, tectonic domestic changes could soon be upon Ukrainian politics.