Are presidential elections in Ukraine possible as early as this year? Why does the Ukrainian Constitution prohibit holding them during martial law? What should the first postwar elections look like, and is Ukraine ready for them? We discussed these issues—as well as the work of the Constitutional Court, the legitimacy of the government, and the challenges facing democracy during wartime—with Andriy Mahera, a renowned Ukrainian legal scholar, former deputy chairman of the Central Election Commission of Ukraine (2007–2018), and an expert on constitutional law at the Center for Political and Legal Reforms.
In brief:
- Presidential elections in Ukraine cannot take place until martial law is lifted, and the first post-war elections must above all be legitimate, not perfect.
- The Constitution of Ukraine does not permit elections to be held during wartime, as it is impossible to ensure the key principles of free expression of will under martial law.
- The current President of Ukraine continues to exercise his powers on a legal basis—until the newly elected head of state takes office.
- Preparations for the first post-war elections are already underway, but there is still no agreed-upon draft law on the specifics of their conduct.
- The most difficult challenges remain organizing voting for military personnel, internally displaced persons, and millions of Ukrainians abroad.
- The Constitutional Court must play a key role in resolving legal issues related to post-war elections and interpreting the provisions of the Constitution.
- Ukraine should draw on the experience of other countries but adapt it to its own realities and the consequences of the war.
“The issue of the 2026 elections is effectively closed”
— Mr. Andriy, there has been increasing talk lately about possible presidential elections, various candidates, and political negotiations. Is a presidential election in Ukraine possible this year?
Presidential elections require a 90-day electoral process leading up to Election Day, while parliamentary elections require a 60-day process. Therefore, even if we hypothetically assume that martial law ends after October, it is already impossible to hold elections within the 2026 calendar year.
— The likelihood is close to zero. I would say it’s zero. After the Verkhovna Rada of Ukraine extended martial law until the end of October this year, no electoral process can begin during this period—even if we hypothetically assume martial law ends. It’s important to understand one key point. Presidential elections require a 90-day electoral process leading up to Election Day, while parliamentary elections require a 60-day process. Therefore, even if we hypothetically assume that martial law ends after October, it is already impossible to hold elections within the 2026 calendar year. Therefore, the issue of elections in 2026 can be considered closed.
— What about next year?
— The chances are slightly better. However, I’m quite skeptical about the possibility of holding elections in the spring. For that to happen, several preconditions must be met simultaneously: security issues and the cessation of hostilities, the lifting of martial law, proper preparation of the electoral process, and the Verkhovna Rada’s adoption of a bill outlining the specifics of holding the first postwar elections. Only if all these conditions are met will it be possible to discuss the hypothetical possibility of elections in the spring of 2027. But, in my opinion, it’s more likely not than yes when it comes to the spring of 2027.
“Elections are not just a procedure, but first and foremost a set of principles”
— The Constitution of Ukraine clearly stipulates that elections are not held during martial law. Similarly, it is impossible to amend the Constitution. How does this work from a legal standpoint?
— That is indeed the case. Article 157 of the Constitution of Ukraine explicitly prohibits any amendments to the Constitution during martial law. The second point is that Article 83, Part 4, explicitly states that if the term of office of the Verkhovna Rada of Ukraine expires while martial law or a state of emergency is in effect, the parliament’s powers are extended until the day of the first meeting of the first session of the Verkhovna Rada elected after the lifting of martial law or the state of emergency. This means that this guideline, which applies to parliamentary elections, applies equally to presidential and local elections. It is sometimes claimed that nothing is specified regarding presidential and local elections. This is addressed in Chapters 5 and 11 of the Constitution, respectively. Let me remind you that Chapter 4 precedes Chapters 5 and 11. Chapter Four concerns the Verkhovna Rada, and Chapter Three—which precedes Chapter Four—is titled “Elections. Referendum.” Article 71 of that chapter clearly sets forth the principles of suffrage. Specifically, the principle of universal, equal, and direct suffrage; the principle of free elections; and the principle of secret balloting. These principles apply equally to all types of elections in Ukraine without exception—whether presidential, parliamentary, or local.
And if anyone thinks that elections are merely a set of mechanical procedures—such as candidate registration, ballot preparation, campaigning, and vote counting—they are mistaken. Elections are, first and foremost, a philosophy; they are values; they are principles. If the principles don’t work, then there’s no point in talking about elections. I even sometimes refer to the electoral process as “principles in motion.” In other words, the electoral process cannot exist without principles. If they are absent, then this process can be called anything but an election. It would be something like what we see in Russia or Belarus.
“Martial law has effectively extended the President’s term of office”
— Ukrainian President Volodymyr Zelenskyy has been in office for eight years now. The Constitution stipulates a five-year presidential term, but the war has forced changes. When it comes to the main challenges for holding elections, is it just the war and martial law, or are there other factors?
— Undoubtedly, the war and the martial law imposed in connection with it are the main challenges for both the state and the citizens of Ukraine. I have already mentioned the principles of electoral law. In particular, the principle of free elections consists of two sub-elements. The first is the ability of a person to freely form their political will. The second sub-element is the ability to exercise that will just as freely.
Therefore, war is undoubtedly a challenge first and foremost, and martial law is a consequence of war. And the fact that, under the Constitution, our President is indeed elected for a five-year term—and, ultimately, all our elected bodies and institutions are elected for five years—indicates that the President retains the remainder of his term not because of the Ukrainians, the Ukrainian people, or the Ukrainian people’s vote, but by virtue of martial law and the war itself. The war has extended his term of office.
If citizens’ constitutional rights and freedoms are restricted during martial law—for example, the right to freedom of thought and speech, the right to peaceful assembly, the right to freedom of movement, and the free choice of residence—then these rights and freedoms are inextricably linked to electoral rights. They cannot exist on their own; they are dependent on those rights. Therefore, war is undoubtedly a challenge first and foremost, and martial law is a consequence of war. And the fact that, under the Constitution, our President is indeed elected for a five-year term—and, ultimately, all our elected bodies and institutions are elected for five years—indicates that the President retains the remainder of his term not because of the Ukrainians, the Ukrainian people, or the Ukrainian people’s vote, but by virtue of martial law and the war itself. The war has extended his term of office. And if we look at Article 108 of the Constitution, specifically Part One, it clearly states that the President exercises his powers until the newly elected President takes office. And there are only four grounds for early termination of his powers. So, fortunately for some and unfortunately for others, Zelenskyy is currently the legitimately elected President of Ukraine. But there is another interesting point regarding his eligibility to run in the next election. For example, in the United States of America, there is also a limit of two terms for the same person to serve as President. However, in the United States, the rule is that if the Vice President becomes President—whether due to the President’s death or any other reason—and there are less than two years remaining until the next election, that time served does not count toward the next term. In other words, to put it simply, if he served as Vice President for less than two years and then ran for election, he is considered to have been elected in the first election, not the second. And here lies a very interesting argument regarding the American electoral system—and, more broadly, the U.S. legal system—for Ukraine.
Can President Zelenskyy’s next two and a half years in office be considered a new full term in Ukraine, or not? This is an interesting question, the answer to which, in my opinion, should be provided by the sole body of constitutional jurisdiction in Ukraine—the Constitutional Court. There are already certain doubts among experts and lawyers, so a discussion on this matter, in my view, is entirely possible.
— Is the Constitutional Court currently capable of providing such an interpretation?
— The Constitutional Court is currently operating practically at the threshold of a quorum. Of the 18 judges, only 12–13 are consistently present, and at times their number has even dropped to 11. Let me remind you that 12 judges constitute the minimum quorum for the Grand Chamber of the Constitutional Court to function. If there are fewer than that, the Constitutional Court loses its authority. At the same time, at least 10 judges’ votes are required to adopt any decision. Moreover, regardless of whether 12 judges or all 18 are actually working at the Court, the decision must still be supported by at least ten judges of the Constitutional Court. This poses a serious challenge to the Constitutional Court’s operations. Due to the shortage of judges, it is unable to complete the review of many important constitutional cases. I will cite just two examples, though there are many more. The first concerns the Electoral Code of Ukraine, on which the Constitutional Court has yet to issue a legal opinion. The second concerns the interpretation of Article 4 of the Constitution of Ukraine regarding single citizenship. This is an extremely important issue, yet the Court has not yet provided an official interpretation.
There are other cases as well, and new petitions may arise. And it is precisely during wartime, when amending the Constitution is expressly prohibited, that the Constitutional Court’s role in officially interpreting its provisions becomes far more important than in peacetime.
Therefore, I would like to believe that the Verkhovna Rada, the President, and the Judges’ Congress will appoint the judges currently missing to the Constitutional Court. Then the Court will be able to function fully and exercise its powers more effectively. I very much hope so.
— Just a few years ago, Russia actively promoted the narrative of the alleged “illegitimacy” of the President of Ukraine after the expiration of his constitutional term. How important is it for the Constitutional Court to address such issues?
— Undoubtedly, the Constitutional Court plays a crucial role, but to do so, the matter must first be brought before it.
At the same time, I would advise the Russian side to first take a look at its own so-called “elections.” I am not a lawyer for Volodymyr Zelenskyy, but one need only recall how Vladimir Putin’s “election” took place. Voting took place even in the temporarily occupied territories of Ukraine, and it involved the votes of Ukrainian citizens. In my opinion, the legitimacy of such an electoral process should be called into question not only by Ukraine but also by international partners. Therefore, in my view, it would be more accurate to refer to him not as the President of Russia but as the head of the Russian Federation. This status is more fitting for this self-proclaimed leader, who attempted to hold elections—and call them elections—including in the temporarily occupied territories of Ukraine.
“There is no finalized draft bill yet, and there are still quite a few problematic issues”
— Mr. Andriy, I’d like to discuss the prospects for post-war elections. We see that preparations are already underway: a working group has been established in the Verkhovna Rada, and civil society organizations—including “OPORA”—are studying international experience and adopting practices from other countries. How do you assess Ukraine’s technical readiness to hold the first postwar elections? How prepared will the state be when the war ends?
— In 2025, a working group was established by order of the Speaker of the Verkhovna Rada, comprising about 60—and possibly more—members. This group includes not only members of parliament from various factions but also experts, scholars, and representatives of civil society organizations.
Incidentally, the civil society network “Opora” is by no means the only organization participating in this work. Also involved in the process are the Center for Political and Legal Reforms, the International Foundation for Electoral Systems, the Ukrainian Voters’ Committee, the Razumkov Center, and other organizations working on issues related to future postwar elections and preparing relevant analyses.
A large number of experts have been brought in to assist with this work. The working group is divided into seven subgroups, each of which focuses on specific areas: voting by military personnel, Ukrainians abroad, other categories of voters, and organizational aspects of the electoral process.
However, as of today, there is still no finalized draft bill. No document has been developed that has been fully agreed upon by the working group and is ready to be submitted by members of parliament to the Verkhovna Rada.
Moreover, there are still quite a few problematic issues. There are also many valid points. These include, in particular, the organization of voting for military personnel, internally displaced persons, and Ukrainians living abroad, as well as the issue of exercising the passive right to vote for Ukrainian citizens outside the country. This is because this issue is being raised for populist purposes.
For example, I do not agree with, so to speak, “wiping our feet on the Constitution” for the sake of certain circumstances. This is because the Constitution includes a residency requirement (a statutory requirement under which a person must reside in a specific territory for a set period to obtain the right to vote or stand for election—Ed.), and this requirement must be observed. If we violate certain constitutional provisions in one area, how can we justify not violating another constitutional provision? The logic applies equally in both cases. That is why there are many issues that will still need to be addressed in the text of the bill. But I haven’t mentioned the most important point yet. Unless the deputies themselves—the politicians themselves—decide which elections to hold first, how much preparation time is needed before the electoral process begins, and what electoral system should be used for parliamentary elections, all these procedural details are meaningless, because they are essentially the “tail” of the process. The “head” is the electoral system, the timelines, the type of election, and so on. Everything else will stem from that. I would say that right now we’re dealing with the “tail” of the process, whereas we first need to determine its “head.” We need to start with the fundamentals. And the politicians haven’t shared their vision with us—how they understand this. That’s why I would still like this bill to have broad support from many political forces—not only, by the way, in parliament, but also outside of it. So that when the electoral process begins, no one can say, “Look, someone backroom-dealt something, rigged the vote,” and so on. There must be broad support for this bill within Ukrainian society. At the same time, I have no illusions that these elections will be perfect. They cannot be so for objective reasons: security issues, the human factor, the state’s financial capabilities, and many other circumstances. But at the very least, we must not create additional artificial obstacles. For example, I do not think it is right to restrict people’s participation in the elections solely on the grounds that economic sanctions have been imposed on them. Statements have already been made regarding Petro Poroshenko, Boryslav Bereza, and others. In my opinion, this is an abnormal situation. Such restrictions will certainly not contribute to the recognition of the electoral process’s legitimacy once the war ends. Therefore, the main thing is not to create additional problems on top of those that already exist.
— And how can we ensure the right to vote for the millions of Ukrainians who were forced to leave their homes because of the war: internally displaced persons and those who are abroad?
— This is a complex issue. I’ll say right away that there’s another challenge like this, but in my view, it’s the easiest to resolve—namely, voting by internally displaced persons within Ukraine. Even though some of them aren’t registered at their new place of residence, or, say, don’t live at their registered address, this problem can still be solved. And, after all, a voter isn’t required to vote where they’re registered, at their place of residence. What matters is the voting address. And the voting address can be different. There’s nothing wrong with that, and there’s nothing to fear. The main thing is for the Central Election Commission to find out where all these people are. Because—to give a hypothetical example— Let’s say there’s a hypothetical polling station somewhere in the Lviv region with 1,500 voters. The CEC prepared ballots for this station, specifically based on that number. But then, after updating the voter rolls, it turned out that this station doesn’t have 1,500 voters, but, for example, 2,200 voters. So what should be done? There won’t be enough ballots for everyone, and there could be problems at this polling station in general. That’s why all these issues need to be worked out in advance. But this problem is the easiest to solve.
Voting by military personnel is somewhat more complicated. That’s because not all of them will be able to vote at regular polling stations. In some places, special polling stations will need to be set up for military personnel. And this, unfortunately, reduces the transparency of the process, because observers, authorized representatives, and so on won’t be able to access every location. This will, unfortunately, be a drawback for the electoral process.
And the most difficult problem, which you’ve already mentioned, is indeed voting—ensuring that voters abroad can exercise their right to vote. Under current law, polling stations must be located within the premises of embassies, diplomatic missions, consular offices, and so on. The law currently does not allow for the establishment of polling stations outside these facilities. There seems to be a more or less general consensus within the working group that additional polling stations should be established abroad. But there are a whole host of problems here. For example, where to find additional staff for these election commissions, where to find premises, where to secure funding to ensure the organization of voting at these new polling stations, as well as security and logistics. There are a whole host of problems that cannot be solved easily or simply. I think there are additional factors at play here as well.
For example, in Poland, there is no ban by that country on holding voting at polling stations outside embassies or consulates. But in the Czech Republic, such a ban does exist. We are forced to comply with the laws of the host country. And this poses additional challenges for such voting.
For example, in Poland, there is no ban by that country on holding voting at polling stations outside embassies or consulates. But in the Czech Republic, such a ban does exist. We are forced to comply with the laws of the host country. And this poses additional challenges for such voting. Of course, I’d like to tell Ukrainians: if you have the opportunity to visit your relatives, loved ones, and so on, please come on Election Day and vote at any polling station you choose within Ukraine. But we must understand that there’s a financial factor at play; these are people who, one way or another, have integrated to some extent into the societies of the countries where they’ve been living for several years. Some have found jobs, some have taken out bank loans, some have enrolled their children in school, and so on. It’s not as simple as it seems at first glance, of course.
— Which countries’ experiences could be useful to Ukraine in organizing its first postwar elections?
There is no ideal example that could be fully replicated. The best option is to combine the experiences of various countries.
— There is no ideal example that could be fully replicated. The best option is to combine the experiences of various countries. In particular, it’s worth paying attention to the experiences of Bosnia and Croatia regarding the postwar period. This is an interesting point for us. At the same time, the experience of Moldova and Romania could be useful, since they organize a significant number of polling stations abroad and have relevant experience. I would say this: combine the experience of Croatia, Bosnia, Romania, and Moldova. And we’ll probably end up with a more or less workable solution. But regardless of whose experience we draw upon, the same key challenges remain—financial resources, staffing, security, and logistics. And each of these will have to be addressed separately.
— Thank you!
Author: Svitlana Mialyk
