Zelensky and the Question of Elections during Wartime

Eliot Wilson in the Spectator argues that Ukrainian president Volodymyr Zelensky is right to remain in office past the end of his presidential term because it is impossible for Ukraine to hold elections under current conditions. Of course, if there are no elections, there is no Ukrainian government more legitimate than the one that was duly elected in 2019. There are really two separate questions here: whether it’s right for Zelensky’s government to decline to hold elections during wartime, and whether, if it’s not right, that so damages the legitimacy of Ukraine’s regime that the West should decline to support it.

Zelensky came to office with a huge mandate, winning 75 percent of the vote in the spring of 2019 against incumbent Petro Poroshenko. Ironically, the only precincts Zelensky lost were in the westernmost, pro-European part of the country, because at the time Zelensky was seen as the candidate less confrontational with Russia. That would likely be more of a stronghold for him today, when the parts of the country that would face the greatest practical difficulty in voting would be the more traditionally pro-Russian sectors in the east. There is no doubt that Zelensky and his war policy were hugely popular in Ukraine at the outset of the war and now face a significant undertow of war-weariness; what is less certain is how Ukraine’s current electorate would respond if given a choice of alternatives with different visions of how far to press the war.

Wilson argues that an election would face formidable practical difficulties:

It is obviously impossible to conduct a free, fair and representative presidential election when a fifth of the country is controlled by the enemy. As late as last fall, Zelensky was considering whether there could somehow be a poll, making provision for votes to be cast abroad and for those in the armed forces to exercise their franchise, but the practical obstacles were too great. Even if elections were held in the four-fifths of the country not occupied, polling stations would be prime targets for Russian military strikes — and meaningful campaigning would be almost impossible.

Moreover, Zelensky has both the legal authority and the political authority to rule without elections:

Zelensky declared a state of martial law on February 24, 2022, in response to the Russian invasion, according to the Constitution of Ukraine. . . . Article 108 of the constitution makes it clear that the incumbent president remains in office until a successor is sworn in. This is not a matter of autocratic disdain by the head of state: in November last year, all parties represented in the Verkhovna Rada,  Ukraine’s parliament, agreed a memorandum agreeing that elections should be postponed until martial law comes to an end. It states that “future free and fair national elections (parliamentary, presidential) shall be held after the end of the war and the end of martial law with a period of time sufficient to prepare for elections (at least six months after the end of martial law).”

Wilson notes that this is consistent with British practice, in which no elections were held during the First World War or the Second World War (Churchill was never elected, and was famously voted out of office as soon as the war in Europe was over). In both cases, the British formed unity governments bringing the major opposition party into government — much as Benjamin Netanyahu has done in Israel. What Zelensky has done may seem profoundly anti-democratic to Americans, but it will feel much more familiar to inhabitants of other established democracies. We should not judge him too harshly from the outside.

That said, the American experience shows the value of sticking stubbornly to regularly scheduled elections even when wars make it impossible to hold a completely representative plebiscite. As Wilson contends: “Franklin D. Roosevelt was subject to re-election in 1944 when the United States was still at war with Germany and Japan. But the comparison is fatuous: America was never occupied during World War Two, nor was there any serious suggestion that it might be invaded. So the electoral infrastructure was intact and unthreatened.” But, of course, that’s not the only American precedent. In 2001, New York City’s mayoral primary was scheduled for September 11. I voted in it on my way to an office that was in flames when I got there. That day’s voting couldn’t be finished, but the city held the rescheduled vote just two weeks later, on September 25, while the city air was still acrid with the smell of death.

We very famously held congressional elections in 1862, gubernatorial elections in 1863, and a presidential election in 1864 in the midst of a great civil war. We did so with extensive accommodations to allow soldiers in the field to vote (either by mail or by return home, depending on state law), but also with a practical acceptance that the election would be only as representative as possible. The seceded states didn’t vote; Southern states under military occupation, even if nominally back in the fold, weren’t given a say. Turnout in states on the front lines was way down: Kentucky cast 92,088 votes in 1864, compared with 146,216 in 1860 (a 37 percent decline); Missouri was down from 165,363 votes to 104,346 (also a 37 percent decline); and Maryland was down from 92,502 to 72,892 (a 21 percent decline). That was due to a variety of factors, including the disqualification of adult males of voting age for participation in the rebellion.

In the War of 1812, we held a national election in the fall of 1812, with our army invading neighboring Canada and enemy forces besieging territorial outposts in Detroit and Fort Wayne. Regularly scheduled congressional elections were held in 1814 — even in Maryland, which went to the polls on October 3, six weeks after the British army burned Washington, D.C., and three weeks after the bombardment of Fort McHenry, which ended, famously, with the star-spangled banner still flying.

Even during the Revolutionary War, Americans held a fair number of elections, even for newly created offices. Sometimes, as in Virginia and North Carolina, they circumvented the popular vote by having governors elected by the legislature. But not always. There were contested popular votes for governor in Massachusetts and Connecticut in 1780, for example. The most extreme effort was made in New York, where the British occupied New York City in 1776, gaining effective control over Brooklyn and all of Long Island. The Saratoga campaign was launched in June 1777, involving a two-pronged invasion from the north and west, one marching down the Hudson River and the other down the Mohawk, with a planned rendezvous in Albany. The campaign continued until the British defeat at Saratoga in October, and involved the calling up of local militias up and down the paths of the two rivers. In the midst of all of this, on April 20, 1777, the state’s “Provincial Congress” adopted a new constitution, and an election for governor was held in June (because of the war, votes were not fully tallied until early July). Three of the four major candidates were in uniform at the time, and besides the winner (George Clinton, who went on to be vice president under Thomas Jefferson and James Madison), there were votes for heavyweight figures such as Philip Schuyler (later a senator and the father-in-law of Alexander Hamilton) and John Jay (later the nation’s first chief justice, among many other offices). Fewer than 3,800 votes were cast, and the election didn’t go off without the embarrassment of Clinton’s winning both the race for governor and lieutenant governor, compelling him to decline the latter office. But Clinton’s victory showed the power of even a seriously flawed democracy: It upset expectations of the state’s landed gentry that their man Schuyler would win, and established a Clinton family dynasty that would dominate New York politics until 1828.

Americans might excuse Zelensky for not following our example. But it’s still not how we would do it.