The increase of the electoral threshold from the current three to the former five percent has become a topic with which some officials of the Serbian Progressive Party ‘threaten’ the opposition on average once a month. They say that this percentage is, for the opposition, a mere wishful thinking, thus creating an image for the public that it now depends solely on the goodwill of President of Serbia Aleksandar Vučić, who is formally not, but essentially remains the leader of the strongest party, as to who will join the Progressives in the parliamentary benches next time. From a legal point of view, it is possible to change election laws every year, but changing the rules of the game before announcing elections is a continuation of a practice that is contrary to international standards.

The discussion about reverting the threshold to five percent began late last year and resurfaced in March when high SNS official and head of the leading parliamentary group “Aleksandar Vučić - Together we can do anything”, Milenko Jovanov, claimed that citizens were demanding a return to five percent because, as he stated, they considered that numerous opposition parties were unworthy to sit in the Serbian Parliament. 

“Nevertheless, it was the three percent threshold that made it possible for citizens to see what kind of dilettantes they are. Had they stayed out of Parliament, they might still seem serious to some. This is how everything came into the open”, said Jovanov. 

This is exactly what Vučić talked about in June this year, and it was reiterated by the most vocal representatives of the Progressive Party after him. Thus, in July, ruling majority MP Vladimir Đukanović practically repeated Vučić’s words that the electoral threshold for parties should be increased to five percent, and for coalitions to seven. MP Sandra Božić, who also serves as Deputy Speaker of the Parliament, expressed the same opinion and quoted Vučić in August. 

“I am absolutely in favour of returning the electoral threshold to five percent”, said the Serbian Progressive Party MP and repeated that “Vučić announced that the elections could be held within three to seven months, but the opposition cannot set the conditions under which the elections will take place”.

However, it remains unclear what prevents the ruling majority from initiating the question of increasing the threshold in Parliament, not just in the media.

There are no legal obstacles, but… 

“There is no legal prohibition in Serbia, either in the laws or the Constitution, against making substantial interventions to electoral legislation in the year leading up to elections”, Vladana Jaraković, CRTA’s legal expert, explains for Istinomer (Truth-o-Metre). She adds that it should be borne in mind that, in addition to the Constitution and laws, part of the legal order of Serbia also includes ratified international treaties as well as generally accepted rules of international law. She highlights the example of the Constitutional Court that has upheld the authority of Venice Commission documents through various decisions.

“It was in 2002 that the Venice Commission adopted the Code of Good Practice in Electoral Matters, which includes the standard that the basic elements of the electoral law, especially the electoral system itself, the composition of the election commissions and the determination of the boundaries of constituencies, must not be altered within one year prior to the elections. According to the interpretative reading of this norm, the rules concerning the distribution of mandates belong to the fundamental elements of the electoral law. The threshold is unequivocally one of those elements”, says Jaraković. 

She also explains that the Code leaves the states wide discretion to decide on the electoral system they will apply, and consequently, the threshold they will opt for. 

“So, if the Code of the Venice Commission is respected, the threshold in Serbia can be changed from three to five percent, for example, whenever it is judged that such a solution is the best – except in the year preceding the elections. Due to the fact that a change can be perceived as safeguarding narrow party interests and aimed at improving the electoral outcomes of the ruling party, such perception, even in cases where there is no intention of manipulation, certainly undermines trust in the electoral processes”, says Jaraković.

Finally, if a change in the threshold were to be repeated a few months before the elections, as was the case in 2020 when the threshold was reduced to three percent in February, and the elections were originally scheduled for April (but postponed to June due to the Covid-19 pandemic), European standards would not be violated in a material sense. 

Nonetheless, it should be examined before the Constitutional Court whether the amendment of the law in such a short time before the elections, in the formal sense (with regard to the adoption procedure), is inconsistent with the generally accepted rules of the international law, i.e. the standards contained in the documents of the Venice Commission, which order that the essential elements of the electoral system, on which the distribution of mandates depends (like the threshold), must not be changed a year before the election”, Vladana Jaraković assessed.

The threshold is important because of the distribution of mandates

A political scientist Vujo Ilić reminds that the previous change to the threshold in 2020 was also announced in this way. As a matter of fact, MPs and officials of the ruling party first talked about the need to reduce the threshold, although this was not a topic in public, and then the changes to the law appeared overnight in the National Assembly. 

“Now they are talking about the need to increase the threshold, without a clear argument that we can understand in the light of the previous explanations why the threshold needed to be reduced”, Ilić told Istinomer. 

Bearing in mind that before the 2022 elections, a set of completely new election laws was adopted, he believes that there is a pattern of behaviour of the ruling majority based on which we can expect another change in election rules soon.

“Since reverting the threshold to five percent would probably be difficult to explain, I expect that the next change may be in the direction of a graduated threshold, where its height would depend on the number of parties that propose an electoral list”, says Ilić. 

He points out that this is not the first time this has happened. In Serbia in the 1990s, elements of the electoral system were changed before each election, namely in 1990, 1992, 1997, and then in 2020. 

“The electoral threshold was not changed in the 1990s, it had been five percent since 1992, but the number of constituencies, the order of distribution of mandates and some other elements were changed. In the 2000s, we introduced gender quotas and changed the method of distributing mandates to minority lists, but not before the elections themselves. In fact, in the last two decades, from 2000 to 2020, Serbia ceased the practice of changing the rules of the game just before the elections, but since 2020, that practice has been gradually reintroduced”, says Ilić. 

He adds that the elements of the electoral system are not defined in the Constitution, so 126 members of the National Assembly can formally change them at any time, but that changing the rules of the game before the announcement of elections is not a good practice, and is not the norm of the electoral heritage that governs democracies in Europe. 

“If we wanted to prevent this from happening again in the future, we should, for example, constitutionally determine that changes to electoral laws cannot come into force before the next elections are held, as is the practice in Greece, for example”, Ilić added.

Since, according to all the surveys, the threshold is not a problem for the SNS, the question arises whether the change in the threshold is in their favour, or if it will still be a risk as it may force opposition parties to consolidate. Political scientist Vujo Ilić believes that the key question is how the height of the threshold can affect the final distribution of mandates, bearing in mind that the higher the threshold, the greater the disparity between the distribution of votes and the obtained seats. 

(Let us remind you, according to D’Hondt’s system, the votes of those who did not pass the threshold are allocated proportionally, so in the end the parties that won the highest percentage of votes, get the most additional mandates).

“That's why I emphasise the threshold as one of the important elements of the electoral system as it affects how votes are converted into mandates. Under the current circumstances, it is in the interest of the SNS for the threshold to be higher and changed when it suits them so that other parties cannot adapt. We do not know if the opposition parties will adapt and in what way, but the change in the electoral system that makes it difficult for the opposition parties to compete and forces them to participate in the election together can be a risk for the dominant party. This matter is hence undoubtedly still under consideration within the SNS”, Ilić said.

In any case, he believes that raising the topic of the threshold is a classic example of diverting attention because, bearing in mind all other problems, the electoral threshold is not a burning issue. 

“In recent years, through the demands of political parties and the reports of election organisations, European institutions, expert and observers’ organisations, a fairly broad agreement has been reached regarding the main problems of elections in Serbia. These are primarily the inequality of participants, abuse of public resources, and pressure on voters, and these are the things that make the electoral conditions in Serbia bad. Even if we wanted to open the issue of changing the electoral system, there would be reasons and motives to initiate that dialogue, but the threshold is not even a burning issue in that context, says Ilić. 

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It has become commonplace for the media to report President Vučić’s statements daily as news that the opposition cannot choose which elections will be called, and that he has no need to explain why, apart from the government’s sheer will, early parliamentary elections would be called in spring together with the regular local ones. If only a single individual within the state possesses the knowledge of when and which elections will be announced, then the electoral system and the state of democracy are clearly far from regarding the threshold height as the central issue.