Madis Ernits: how to break Estonia's presidential election deadlock

Legal scholar Madis Ernits argues that Estonia's recurring presidential election impasse can be resolved without amending the Constitution. By reinterpreting the phrase "majority of those who participated in the vote," only valid ballots should count, ensuring the Electoral College always produces a president in the second round.

The question of how Estonia elects its president resurfaces in public debate roughly every five years. The Constitution has been subject to 18 proposed amendments on this topic alone, yet none have succeeded. Madis Ernits, a legal scholar and former Supreme Court Justice, argues that the solution lies not in constitutional reform but in a smarter interpretation of the existing text.

The 2016 deadlock that exposed the flaw

Ten years ago, Estonia experienced the worst-case scenario of its presidential election system. After nearly half a year of unprecedented political manoeuvring and intense public expectation, the second round of the Electoral College vote was declared failed. Both remaining candidates, Siim Kallas and Allar Jõks, were left unelected. The country watched in disbelief as the system produced no result at all.

The root of the problem lies in a single constitutional sentence: "The Electoral College shall elect the President of the Republic by a majority of the votes of the members of the Electoral College who participated in the voting." The phrase "majority of those who participated in the voting" is unusual in this context. Ernits traces its origin to referendums, the 1920 and 1938 constitutions both used nearly identical phrasing exclusively for public referendums, not for representative body elections. It appears to have migrated into the presidential election rules somewhat accidentally.

How a mistaken interpretation created a vicious circle

The Presidential Election Act (VPVS) codified a problematic interpretation of this phrase during its parliamentary debates. Since the Constitution does not explicitly state that the candidate with the most votes in the second round wins, lawmakers concluded that a simple relative majority is insufficient. If neither candidate clears a qualified majority threshold, the Electoral College simply fails to elect a president, and the cycle continues.

Legal experts Jüri Adams and Rein Toomla both raised concerns at the time. Adams said he found it incomprehensible what the purpose of "against" votes would even be in a multi-candidate election. Toomla wrote in 2002 that it would have been entirely reasonable to count only those members who actually voted for someone as having "participated" in the vote.

Ernits points out a further inconsistency within the VPVS itself: the Act distinguishes between different types of spoiled ballots, treating some as protest votes with legal significance and others as having no effect at all. There is no logical basis for this distinction. A ballot torn in half, for instance, has no legal standing under the current rules, while a ballot marked in two boxes counts as a vote against.

What the Constitutional Assembly actually intended

Ernits draws attention to a passage from the Constitutional Assembly's proceedings that has been largely overlooked in subsequent legal debates. On 7 February 1992, assembly member Liia Hänni stated clearly that the Electoral College system was designed to guarantee that a president would always be elected: «Hinnangud näitavad, et selline valimisviis [...] võtab küll rohkem aega, kuid siiski valitakse president mõistliku aja jooksul ja tähtis on see, et ta kindlasti valitakse.»

This intent is further supported by the democratic principle enshrined in the Estonian Constitution's preamble and in §§ 1 and 10. Ernits cites French constitutional scholar Guy Carcassonne, who addressed the Assembly in 1991 and stressed that democratic decision-making processes must always be structured to reach a conclusion. The Supreme Court of Estonia has affirmed this principle: democracy fulfils its purpose only when it functions, and it functions when deliberation ends in a decision.

Two practical paths forward

Ernits proposes two remedies, neither of which requires a constitutional amendment.

The first is a reinterpretation by the National Electoral Committee: the phrase "members who participated in the voting" should be understood to mean only those who cast a valid ballot. Under this reading, spoiled or blank ballots would not count toward the threshold, meaning the candidate with the most valid votes in the second round would always win. This would guarantee that Estonia always has a president after the Electoral College's second round.

The 2016 opinion by the Chancellor of Justice, which concluded that spoiled ballots must be counted, should not be treated as a binding obstacle, Ernits argues. That opinion relied almost entirely on the wording of the VPVS rather than on constitutional interpretation, and its core counter-argument, that otherwise a candidate could win with a single vote if everyone else spoiled their ballot, is not a realistic scenario in any known democratic system.

The second path is a legal challenge: if the 2016 deadlock were to repeat, the candidate who received more votes but was declared not elected should contest the Electoral Committee's decision in court and request that the relevant provision of the VPVS be declared unconstitutional.

A small change for a more democratic Estonia

Ernits concludes that reinterpreting "majority of those who participated in the voting" to mean only valid ballots is both constitutionally justified and democratically necessary. It would end the cycle of failed elections, create conditions for genuine candidates to compete seriously, and make the entire process more transparent. «See ei ole tühiasi, vaid see tilluke muudatus teeks Eesti kukesammu võrra paremaks ja demokraatlikumaks riigiks.»