Preferential vote in the Constitution and Unconstitutionality of its application by the Electoral Code in Albania

• Pages: 202-217

Vo

l. 7 N

o

. 1

M

arc

h,

202

1

A

cademic Journal o

f

Business,

A

dministration, Law and Social Science

s

II

PCCL Publishin

g

, Graz-

A

ustri

a

I

SSN 2410-391

8

A

cces online at www.ii

p

ccl.or

g

2

02

Preferential vote in the Constitution and Unconstitutionalit

y

of its

app

l

ication

by

t

h

e E

l

ectora

l

Co

d

e in A

lb

ani

a

Fa

b

ian To

p

o

ll

ari

U

niversity o

f

Tirana,

A

lbania

Abstract

The Constitution of the Republic of

A

lbania with the amendments of July 30, 2020 determines

t

he way how the deputies of the

A

ssembly of the Republic of

A

lbania are elected, adding as

part o

fA

lbania’s electoral system the pre

f

erential vote.

A

rticle 64 o

f

the Constitution sanctions

t

h

a

t:

•

The

A

ssembly consists of 140 deputies, elected according to a system of proportional

e

lections with regional competition and national threshold;

•

The electoral subjects that reach the national threshold participate in the distribution o

f

m

andates

;

•

Voters enjoy the right to give their pre

f

erential vote to candidates on multi-name lists. The

e

lection law establishes the criteria and rules for implementing the electoral system, the

d

esi

g

nation o

f

constituencies, the national threshold, the number o

f

mandates

f

or each

constituency, the distribution of mandates and the extent of the preferential vote. "The

e

lection law

g

uarantees that no less than two-thirds o

f

the multi-name list will be sub

j

ect to

preferential voting and will ensure gender representation."

D

ue to the special importance o

f

the

I

nstitution o

f

the

A

ssembly o

f

the Republic o

f

A

lbania, the

C

onstitution has de

f‌i

ned in the basic act not only the composition o

f

this body, its

f

unctions

and competencies, but also the way the deputies are elected in the Republic of

A

lbania. By

d

ef‌i ning the main rules and principles of the selection process by the electors of the deputies

o

f the

A

ssembly of the Republic of

A

lbania, the constitution-maker on the one hand proves the

special importance o

f

this body and on the other hand takes care that the composition o

f

the

A

ssembly o

f

the Republic o

f

A

lbania is an expression o

f

popular will

.

K

e

y

words: Preferential vote, Constitution, Electoral Code, Albania.

Introduction

The constitutional

p

rovisions o

f

the

p

rocess o

f

selection o

f

A

ssembl

y

members’

sanctioned b

y

A

rticle 64 o

f

the Constitution and onwards, are closel

y

related to the

f

undamental right to vote and to be elected, because the

A

ssembl

y

is the highest

r

e

p

resentative bod

y

directl

y

elected b

y

the voters who are also the holders o

f

sovereignt

y

in the Re

p

ublic o

f

A

lbania. This means that when the constitution-maker

h

as de

f‌i

ned the right to vote and to be elected as a constitutional right in its article 45,

f‌i

rstl

y

has taken into account the

p

ossibilit

y

o

f

citizens to select the de

p

uties o

f

the

A

ssembl

y

o

f

the Re

p

ublic and second the o

pp

ortunit

y

o

f

each voter to com

p

ete and

t

o be elected as a member o

f

the

A

ssembl

y

.

S

ince the amendments o

f

2008, the Constitution o

f

the Re

p

ublic o

f

A

lbania de

f‌i

nes

th

e

p

ro

p

ortiona

l

e

l

ectora

l

s

y

stem wit

h

mu

l

ti-name constituencies as an e

l

ectora

l

Vo

l. 7 N

o

. 1

M

arch, 202

1

ISS

N 2410-391

8

A

cces on

l

ine at www.ii

p

cc

l

.or

g

2

03

A

cademic Journal o

f

Business,

A

dministration, Law and Social Sciences

II

PCCL Publishin

g

, Graz-

A

ustria

s

y

stem a

pp

lied in the Re

p

ublic of

A

lbania for the election of de

p

uties according

to which electoral subjects com

p

eted in constituencies with multi-name lists of

c

andidates for de

p

uties and in in each constituenc

y

the electoral subjects

p

roduced

man

d

ates in

p

ro

p

ortion to t

h

e votes t

h

e

y

h

a

d

secure

d

.

E

ven wit

h

t

h

e c

h

anges ma

d

e

to the Constitution b

y

law 115

/

2020, the regional

p

ro

p

ortional s

y

stem was

p

reserved

b

ecause the com

p

etition o

f

electoral subjects is still done with multi-name lists in each

el

ectora

l

region. So accor

d

ing to t

h

is s

y

stem, t

h

e

El

ectora

l

Co

d

e

d

ivi

d

es t

h

e countr

y

i

nto severa

l

constituencies an

d

t

h

e e

l

ectora

l

su

b

jects are

p

resente

d

to t

h

e voters in

e

ach region with a multi-name list o

f

candidates

f

or de

p

uties. Voters b

y

voting

f

or

the electoral subject have conse

q

uentl

y

voted

f

or the multi-name list o

f

that subject.

T

hus, the mandates

f

or de

p

uties in each electoral region are

p

roduced based on the

n

umber o

f

votes

p

rovided b

y

each electoral subject.

E

ven though the electoral s

y

stem

w

as

p

reserved, the Constitutional amendments ado

p

ted b

y

Law 115

/

2020, have set

n

ew rules on determining the winning candidates within the multi-name list o

f

e

lectoral subjects. Previousl

y

, the Constitutional

p

rovisions of Article 68

/

1 sanctioned

that the order o

f

the multi-name list o

f

electoral subjects could not be changed a



er its

su

b

mission to t

h

e C

E

C, an

d

conse

q

uent

ly

t

h

e man

d

ates were

d

istri

b

ute

d

accor

d

ing

to t

h

e or

d

er in t

h

e mu

l

ti-name

l

ist an

d

t

h

e winners were

d

etermine

d

t

h

ose on t

h

e to

p

.

i

n

p

ro

p

ortion to t

h

e man

d

ates won, wit

h

t

h

e amen

d

ments to t

h

e Constitution ma

d

e

through law 115

/

2020, the wa

y

of determining the winners has changed.

A

ccording the constitutional changes im

p

lemented b

y

law 115

/

2020, the ban on not

c

hanging the ranking o

f

the multi-name list

f

rom

A

rticle 68 o

f

the Constitution has

b

een remove

d

, an

d

t

h

e voters

h

ave t

h

e rig

h

t to, in a

dd

ition to t

h

e e

l

ectora

l

su

b

ject an

d

c

onse

q

uentl

y

the multi-name list the

y

vote

f

or, also vote

f

or their

f

avorite candidate

w

ithin this list. Article 64

/

3 of the Constitution sanctions the right of voters to give a

p

re

f

erential vote within the multi-name list, and also guarantees the right o

f

voters

to vote and also select the

p

re

f

erential candidate within the multi-name list o

f

the

p

olitical entit

y

f

or which the voter has voted.

C

onse

q

uentl

y

, with the changes o

f

Jul

y

30, 2020, the constitution-maker on one hand

h

as ke

p

t intact the regional

p

ro

p

ortional s

y

stem as a legal

f

ormula that determines

the number o

f

winning seats o

f

each electoral subject in the constituencies and on

the other hand has increased the

p

ossibilit

y

o

f

determining winning candidates

w

ithin multi-name lists o

f

electoral subjects through

p

re

f

erential vote. Sim

p

l

y

p

ut, i

f

p

revious

ly

t

h

e Constitution guarantee

d

voters on

ly

t

h

e rig

h

t to vote an

d

se

l

ect on

ly

the

p

re

f

erential electoral subject and the

p

re

f

erential multi-name list, now in addition

to the multi-name list, the voter directl

y

selects his

p

re

f

erential candidate within this

l

ist. This means that with the constitutional changes o

f

Jul

y

30, 2020,

A

lbanian voters

h

ave been given the right to vote

f

or the

p

re

f

erential candidate o

f

the multi-name list

f

or which the

y

vote. Previosl

y

, the voters had the right to an onl

y

vote to determine

the de

p

uties o

f

the

A

ssembl

y

o

f

the Re

p

ublic o

f

A

lbania, while toda

y

, based on the

c

hanges that occurred to the Constitution with law 115, dated 30.7.2020, the voters

d

irectl

y

select the de

p

uties b

y

exercising two t

yp

es o

f

votes. The

f‌i

rst vote is

f

or the

e

lectoral subject and the multi-name list the

y

select, based on which the number

of

mandates o

f

each electoral subject in each electoral region is determined. While

the second vote is

f

or the

p

re

f

erential candidate within the multi-name list, which