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The five-year term of Ukraine's current President is nearing its end and foreign allies are pressuring the country to conduct new elections -- despite the logistical nightmare of both campaigning and the actual voting while literally under enemy fire, and with swathes of the nation under enemy rule.

Are there any provisions in American Constitution for (not) holding elections when parts of the country are under foreign occupation? How about France, Germany, or Britain -- do they have such provisions?

What if Great Britain occupies Maine, for example. Do the two Senators -- and the Congressional delegation -- from the State lose their mandates right away? Or do they serve out the remainders of their terms and then leave — or do they stay on until such time the proper elections can be held? What if some of them pass away before then — are they replaced by someone, and, if so, how are the replacements chosen?

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    This question is probably better suited to Politics.SE and might be best to migrate to Politics.SE, but I've provided an answer anyway.
    – ohwilleke
    Jan 26 at 23:43
  • Great Britain doesn't want Maine.
    – Richard
    Jan 27 at 11:59
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    @ohwilleke, I'm interested in exactly the legal aspects of it. From politics point of view, obviously,, something, "that seems right at the time" would be found in the absence of legal framework. Thanks for the elaborate answer -- looks like no legal provisions exist in the US. Nor elsewhere... No one expects a foreign occupation.
    – Mikhail T.
    Jan 27 at 21:02

1 Answer 1

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Overview

The predominant practice historically has been for governments that claim territory that is occupied by other regimes where they have no practical ability on the ground to conduct elections or govern the disputed territory, is to not provide anything more that token or symbolic representation to that claimed territory in its political institutions, or to not try to hold elections in the allegedly occupied territory.

The Case Of The United States

Are there any provisions in American Constitution for (not) holding elections when parts of the country are under foreign occupation?

What if Great Britain occupies Maine, for example. Do the two Senators -- and the Congressional delegation -- from the State lose their mandates right away? Or do they serve out the remainders of their terms and then leave — or do they stay on until such time the proper elections can be held? What if some of them pass away before then — are they replaced by someone, and, if so, how are the replacements chosen?

The U.S. Constitution provides that the federal government shall insure that a "Republican government" prevails in U.S. states and that the federal government may be called upon to prevent invasion and insurrection in a U.S. state. This says nothing expressly about the conduct of elections in places under foreign occupation.

There are really only six historical, as opposed to legal, precedents that are on point, with the experience of the U.S. Civil War being most germane. These precedents, and especially that of the U.S. Civil War, would be given great weight because there are no other authoritative sources to provide courts with guidance if this issue came up.

  1. During the Revolutionary War (the started in 1776), the Revolutionary forces elected leaders and conducted business for the emerging Revolutionary regime covertly and at such locations as they could manage without disruption, even in areas that had not yet been fully "liberated" from British occupation and rule.

At first, this was ad hoc, with governance largely constituted by institutions of colonial self-government that had declared independence from British supervision while continuing their status quo practices insofar as it was feasible to do so, with informal consultations among people in the revolutionary movement without a legalistic adopted formal plan of organization.

This was followed by a federal regime under the Articles of Confederation that had nothing more than an all purpose assembly and a revolutionary military force led by George Washington as institutions, with successors to colonial governments operating as best they could without British supervision and with very little central government supervision. The current U.S. Constitution then took effect in 1789.

In this early era, before the D.C. capital was set up after the current U.S. Constitution was adopted, the central of central government operations relocated more than once, with important matters conducted in Boston, in New York City, and in Philadelphia, at times.

  1. Elections, elected offices, and the conduct of government were not suspended during the Whiskey Rebellion. In part, this is because the rebellion was swiftly put down by George Washington and never really gained de facto control of the area where it took place.

  2. A dispute over which of two purported regimes claiming to be the legitimate government of one of the U.S. states in the 1800s, Rhode Island, if I recall correctly, was ultimately resolved internally within that state and not be federal intervention.

  3. Parts of the territory of the United States were occupied by Great Britain during the War of 1812. U.S. elections and the offices of federal elected officials were not suspended anyway during the War of 1812 in places occupied by Great Britain. This is, in part, however, because British occupation was too fleeting and incomplete for this to be necessary. They burned down the predecessor to the current White House, but there hold wasn't secure enough to really rule any U.S. territory.

  4. The most relevant historical precedent is that during the U.S. Civil War (from 1861-1865). During the U.S. Civil War members of Congress were not seated from the Seceding states, and "governments in exile" loyal to the Union were not recognized from those states. During Reconstruction, following the U.S. Civil War, Confederate states were not readmitted to full participation in the federal government political process immediately. This only happened in each state once loyal post-Civil War governments were formed, under new state constitutions acceptable to the federal government.

This was done without formal constitutional language to support it, because it seemed right at the time in the context of the larger civil war, and emerged more or less organically. The disenfranchisement of rebellious territories was justified to that extent that there was a justification, under Congressional war powers and under the authority of the central government to put down insurrections (which was a primarily Presidential, rather than a primarily Congressional power).

  1. The U.S. (while admittedly never occupied during World War II, and experiencing only the slightest hostile warfare or military strikes during World War II after Pearl Harbor), did not suspend its elections during World War II.

How about France, Germany, or Britain -- do they have such provisions?

The U.K.

The United Kingdom suspended its elections beyond its "unwritten" unconstitutional requirement that elections be held every five years, during World War II, with the support of a unity government backed by all of its major political parties, even though no significant part of the United Kingdom was ever occupied by a foreign power during World War II (civil governments established by the U.K. were also suspended on a few occupied small islands that were U.K. territory).

I put "unwritten" in scare quotes, because, of course, these principles of governance in the U.K. are indeed written down in statutes, and in treatises discussing the boundaries of U.K. politics, law, and legal-political history. They just aren't found in an "entrenched" super-law that has is supreme in the event of conflict with other laws and is harder to amend than other laws.

Since the U.K. does not have a written constitution in that sense, it also doesn't have constitutional provisions governing anything, including the conduct of elections during occupation.

In Constitutional Monarchies Generally

Ultimately, if push comes to shove, in the U.K. and other constitutional monarchies, a foreign occupation of the country's territory and how to deal with that are one of the few areas where active consultation from, guidance, from, and leadership from, the reigning monarch is expected, despite the fact that modern constitutional monarchies are largely symbolic.

Constitutional monarches are a safety value that can address non-monarchy related events that might otherwise be a constitutional crisis, in a definitive way, not only in Europe but also in other places that have them, like Thailand and Japan.

In Other Republics

The current French Constitution of the Fifth Republic adopted in 1958, doesn't squarely address this question upon which it is largely silent, although it does provide for governance of distant possessions of France (largely on an equitable basis to the main territory of France). In all likelihood, the President, the Prime Minister, and the Conseil constitutionnel, would together work through a suitable resolution of the issue in a manner similar to that of a constitutional monarch.

I am not familiar enough to speak to what the German Basic Law says about these subject, although I strong suspect that they are silent on these questions. Certainly, however, prior to the Reunification of Germany, the West German state did not seat government-in-exile representatives from East Germany, despite its express commitment to the reunification of Germany.

Likewise, Taiwan, the People's Republic of China (PRC), North Korea and South Korea, despite all having territorial claims to a counterpart de facto country's territory, do not hold elections in, or provide elected institutional representation to, the populations of the claimed territory in their political institutions. The PRC and North Korea do provide some symbolic stand-ins for territories they claim, but not in proportion to their numbers, not selected through the normal process used in territories they control (and, of course, in the context of essentially non-democratic systems).

Limitations In Applying These Precedents To Ukraine

It does bear noting, however, that the U.S. political experience is not necessarily a great guide to what makes sense or what comparative law precedents should apply in Ukraine. The U.S. is a federal system, and at the times most relevant, the memories of U.S. states as mostly being rooted in pre-U.S. colonial governments that were independent of each other, and the early sense of U.S. states as independently sovereign which only persists on a residual basis, was fresh in the minds of the pertinent legal and political decision makers.

Ukraine and its subdivisions institutionally and historically, have their roots mostly as subordinate political subdivision of the U.S.S.R., that gains full sovereignty with the collapse of the U.S.S.R., in what is basically the reverse of the U.S. process of state formation and nation building.

One of the controversies in Ukraine is that the Crimean Peninsula was only transferred from another U.S.S.R. supervision to Ukraine, not all that long before the U.S.S.R. fell apart, and that this transfer was done only for administrative convenience in a context where it was never expected to play a role in deciding who was subject to national level laws and political decisions. The low level of significance and implications of Crimea being in the Ukraine versus another U.S.S.R political division were not notable and not much of a big deal then, but became a much bigger one when Crimea followed along as part of Ukraine's national government when it gained independence in a nation-state whose national identity the people of Crimea didn't share. This is part of why Russia's annexation of Crimea in 2014 spurred so little local resistance.

The issues related to pro-Russian insurgencies in Eastern Ukraine are rather more complex.

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    It is not quite true that the PRC does not "provide elected institutional representation to" the population of Taiwan. A handful of delegates to the NPC are elected from the "Taiwanese" population to represent Taiwan. I'm not sure how they do that but it's probably overall similar to the other special delegations. Perhaps the current citizens of Taiwan don't get much say, but that's also true throughout much of the Chinese electoral system.
    – gormadoc
    Jan 27 at 7:50
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    @gormadoc Revised to reflect your comment and an additional detail about North Korea which has a small Koreans in exile in Japan delegation.
    – ohwilleke
    Jan 27 at 16:51
  • Thank you. You're quite wrong about Crimea, though: it was "transferred" to Ukraine in 1954, having been part of the Russian Federation by then for only 34 years (substract 4 years of the German occupation). By the time USSR fell apart in 1991, Crimea was part of Ukraine for 36 years -- longer, than it belonged to the RF. Certain territories were transferred from Ukraine to the RF at the time, by the way... I suggest, you remove the last three paragraphs of your answer -- 'cause you're out of your depth on that subject compared to the otherwise superb information given earlier.
    – Mikhail T.
    Jan 27 at 21:11
  • @MikhailT. Everything you have said is consistent with my answer.
    – ohwilleke
    Jan 27 at 22:09
  • @ohwilleke, the part about Crimea becoming Ukrainian "not all that long before the U.S.S.R. fell apart" is wrong. It was part of the Ukrainian Soviet Socialist Republic for more than half of USSR's very existence (1922-91). It is also offtopic -- for I was not asking about Ukraine's history nor its politics :)
    – Mikhail T.
    Jan 27 at 22:16

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