Legal characteristics of the will and expression of the will of the people in direct forms of democracy

Kravchenko Oleg Aleksandrovich PhD in Law Associate Professor of the Department of State and Legal Disciplines of the MIREA 78 Prospekt Vernadskogo str., Moscow, 119454, Russia sf-mka-spb@yandex.ru Other publications by this author

The constitutions of modern States enshrine the fundamental idea of democracy. The modern theory of democracy distinguishes democratic states from non-democratic states by the possibility of changing the composition of state authorities by the people by voting.

In our country, the highest direct expression of the power of the people is a referendum and free elections (Part 3 of Article 3 of the Constitution of the Russian Federation). At the same time, voting, like other phenomena of public and state life, is affected by negative factors (offenses, abuses, distortions, mistakes). In this regard, Part 4 of Article 3 of the Constitution of the Russian Federation establishes an important legal guarantee: "No one can appropriate power in the Russian Federation."

The appropriation of power in the constitutional and legal aspect means not only its forcible seizure, but also, as the researchers emphasize, the appropriation of the powers of state authorities through elections held with gross violations that do not allow determining the authenticity of the will of the people.

Thus, M.A. Krasnov notes: "The usurpation of power (respectively, violation of the sovereignty of the people) should also be recognized as obtaining public authority in the course of legally appointed elections, but in the presence of gross violations that do not allow their results to be recognized as reliable. Moreover, these violations do not necessarily have to be recorded officially (often the state bodies themselves commit violations)" ^{[12, 4-38]}.

Most modern democratic States allow alternative elections by voting. However, as a rule, in the electoral systems of modern states, state bodies organize, conduct and determine the results of elections. In this regard, the possibility of the current composition of state authorities to influence the election results is not excluded. Therefore, the postulate about the desire of any government to preserve it ^{[27, 117]}.

Simultaneously with the appearance of direct forms of democracy, distortions of the will of the people appeared. So, historically, the first democracy – ancient democracy, which is the progenitor of modern democracies, is also the progenitor of the distortion of the will of the people, as Aristotle and Plato also talked about.

According to Aristotle: "so that no one can enter into a deal with either the head of the water or the head of the balloting stones and so that there is no abuse in this regard" ^{[2, 340]}. According to Plato: "Anyone can, if it seems to him that any tablet is filled incongruously with his intention, withdraw it and put it on the square for a period of at least thirty days" ^{[2, 203]}.

Later, I. Bentham and J.J. Rousseau wrote about the issues of distortion of the will of the people when counting votes. According to I. Bentham: "precautions should be taken against possible deceptions both on the part of those voting, so that they do not cast several votes, and on the part of those counting votes, so that they cannot substitute them" ^{[4, 151]} Zh.-Zh. Rousseau noted: "However, an even more serious reason to recognize the invalidity of the Edict was its violation in the most important part, namely, with regard to the method of checking voting ballots or counting votes" ^{[21, 441]}.

In the states where elections are held, falsifications are periodically noted, for example, in England, falsifications in local elections are relatively common ^{[10, 46]}, in Albania, falsifications of parliamentary elections take place ^{[26, 31]}.

Researchers note the presence of distortions in voting in our country during the Soviet era. According to Melikova N.M.: "In order to achieve the necessary results, members of the election commission often resorted to various violations and falsifications" ^{[14, 79, 80, 106, 107, 177, 178, 183, 199, 206, 208, 216]}.

Currently, the problem of distortion of the will of citizens when voting remains relevant. Thus, according to Rossiyskaya Gazeta: "During the elections of the governor of the Penza region, as well as by–elections of deputies of the State Duma of the seventh convocation in the Bessonovsky district, the chairman of the precinct election commission personally entered in 1324 unused ballots – 662 ballots of two types - deliberately false information, putting a mark on voting for one of the candidates for elections, and placed them in a stationary voting box" ^[6].

These circumstances determine the importance of studying the scientific problem of the constitutional guarantee of the authenticity of the will of the people in direct forms of democracy.

And here, in the theoretical aspect, first of all, the question arises about the development of legal terminology. Thus, legislation and judicial practice operate with legal categories that have not yet found deep theoretical understanding and analysis: for example, "reliable determination of the results of the will of voters", "distortion of the will" and others. In addition, there is a shortage of terminology in the field of studying direct forms of democracy. In particular, when studying the issues of distortion of the will of the people in direct forms of democracy, it is necessary to distinguish between the will and the will of the people, the definition of their concepts and related categories. In this connection, it is necessary to introduce into the science of constitutional law and develop such terms as, the will of the citizen, the will of the people, the vices of the will, the stages of expression of the will, which is proposed in this article.

The rule of the subject of law in a democratic state, his will, is predetermined by the peculiarity of state-legal relations, where, firstly, elections and referendums characterize the way the supreme bodies of state power are organized, and secondly, there is a specificity of the legal position, on the one hand, the source and, on the other, the bearer of state power, in which, the first one must have the necessary legal means, firstly, to ensure the process of delegating his will to the second, and secondly, for such a course of this process in which there is no doubt about its correctness.

In this connection, the question arises about the concept of the will of the people as a state-legal phenomenon.

Plato and Aristotle spoke about the possession of a particle of power by each person in a democracy, that is, under the rule of the majority of the people, several millennia ago. Thus, Plato, speaking about the practical implementation of democracy in the state, noted: "As for this latter, it is weak in all respects and, in comparison with the others, is not capable of either great good or great evil: after all, power is divided among many, each of whom has an insignificant fraction of it" ^{[19, 59]}. According to Aristotle: "The people then becomes one-power, as a unit composed of many: the supreme power belongs to many, not to each individually, but to all together" ^{[2, 139]}.

V.M. Hessen recognized for each citizen the same share in the people: "Created by a social contract, a contract of sovereign, i.e. free and equal individuals, the people must be an artificial (mechanical) unity, coinciding with the sum of its constituent parts..." ^{[7, 110-111]}. Approximately the same position was held by V. Orlando, according to whom the legal capacity of an individual includes all individual rights and sovereignty ^{[16, 32]}.According to V.M. Baglay: "If in a totalitarian state, under the talk of democracy, repressions against entire nations were possible, then the humanistic interpretation of the concept of "people" as the sum of equal citizens with rights and freedoms guaranteed for all excludes this" ^{[3, 121]}.

It can also be said that a citizen has a share in the sovereignty of the entire people, and therefore in his will. Yu.A. Vedeneev notes that the main purpose of electoral technologies, in any modification of them, is to collect individual pieces of national sovereignty, the bearer of which is each citizen individually, and in a concentrated form delegate it to legitimately elected representatives ^{[18, 685]}. Various authors draw attention to the fact that a citizen is the bearer or owner of a part of sovereignty: R.G. Timofeeva: "if sovereignty belongs to the people, then all citizens, in their totality, its components, have a part of this sovereignty, which implies universal suffrage" ^{[11, 228]}. According to B.S. Ebzeev: "By participating in the act of elections, a citizen acts as a bearer of a particle of the sovereignty of the people" ^{[28, 265]}.

As can be seen from the points of view presented, the authors, recognizing the citizen's opportunity to participate in the adoption of state-significant decisions, give different names to this legal state: citizen is a particle of the sovereignty of the people (B.S. Ebzeev); citizen is the holder of universal suffrage (R.G. Timofeeva); citizen is the bearer of the sovereignty of the people (Yu.A. Vedeneev), etc. Although, it seems that these authors are talking about what can be called the ability of a citizen to have the will (together with other citizens) to make decisions on delegating power to representatives of the people.

Some authors have rightly noted that the people, by themselves, cannot have a will, but has the coordinated will of the individuals who make up the people. Thus, according to A. Esmen, "A nation to which sovereignty belongs, being not a real person, but a set of individuals, cannot have will itself. The equivalent of this will, necessary for the exercise of sovereignty, can only be found in the coordinated wills of a certain number of individuals taken into the nation. The constituent part of their votes, or votes, is considered an expression of the national will" ^{[29, 198; 30, 174]}.

Hence, citizens who have the right to vote are equal in making decisions regarding the management of the affairs of the state, by itself the method of decision–making is the sum of equal votes of citizens cast in its favor, which means the coordinated wills of citizens in relation to the decision.

Thus, the people express their will in elections to manage the affairs of the state through voting (detecting the will of citizens who have participated in direct forms of democracy), that is, by expressing their will.

At the same time, researchers lack an unambiguous understanding of such terms as "the will of the people" and "the will of the people" in direct forms of democracy. So, V.S. Osnovin considered the will of the people to be the link between direct and representative democracy: "the purpose of direct (direct) democracy is to ensure the normal functioning of representative democracy in accordance with the will of the people ..."^{[17, 36]}. According to A. Salmin: "Modern democracy is, by definition, primarily an organized expression of the will of people" ^{[22, 30]}. Diego Valades also notes something like this: "Power is democratic if it has as its source a universal expression of will – free, secret, unconditional and periodic" ^{[5, 159]}. V.M. Hessen pointed out that: "The people are a multitude singulorum; their will is formed by the summation of individual wills" ^{[7, 110]}.

Legislative definitions of these terms in relation to the citizen and the people are also absent, although they are mentioned.

Thus, the term "expression of will" is used in the norms contained in Part 12 of Article 82, Part 14 of Article 83, Part 17 of Article 85, paragraph 1 of Part 8 of Article 87 of Federal Law No. 20-FZ of February 22, 2014 "On Elections of Deputies of the State Duma of the Federal Assembly of the Russian Federation" ^[25] (hereinafter – Federal Law on the Election of Deputies), in paragraphs 9 and 53 of Article 2, Article 7, paragraph 4 of Article 65, paragraph 15 of Article 66 of Federal Law No. 67-FZ of June 12, 2002 "On Basic guarantees of electoral rights and the right to participate in a referendum of citizens of the Russian Federation" ^[24] (hereinafter referred to as the Federal Law on Basic Guarantees of Electoral Rights), in paragraph 12 of Article 70, Part 13 of Article 71 of Federal Law No. 19–FZ of January 10, 2003 "On Presidential Elections of the Russian Federation" ^[123] (hereinafter referred to as the Federal Law on Presidential Elections of the Russian Federation) and regulating cases of distortion of the will of voters.

The term "will" is used in the norms contained in paragraph 7 of Article 73, sub-paragraphs d) and e) of paragraphs 1.2, 1.4, sub-paragraphs b)-e) of paragraph 2, sub-paragraphs d) p. 3, p. 6, p. 9 of Article 77 of the Federal Law on Basic Guarantees of Electoral Rights, subp. subp. 4 and 5 of paragraphs 1.2, paragraph 5 of Article 85 of the Federal Law on Presidential Elections of the Russian Federation, paragraphs 4 and 5 of Part 3, Part 5, paragraphs 2-6 of Part 6, Part 8 of Article 100 of the Federal Law on Elections of Deputies in which the legislator indicates cases of impossibility to identify the real will of voters.

Some provisions of the law use the phrase "the violations committed do not allow to reliably determine the results of the will of voters (to identify the real will of voters" (Paragraph 1.4 of Article 85 of the Federal Law on Presidential Elections of the Russian Federation, Part 5 of Article 100 of the Federal Law on Elections of Deputies, paragraph 1.4 of Article 77 of the Federal Law on Basic Guarantees of Electoral Rights), which implies identification of the terms "the will of the people" and "the will of the people" in direct forms of democracy.

We will try to identify the differences and give the concept of "will" and "expression of will" of both the voter and the people. There are statements by authors who share the concepts of "will" and "expression of will".

Foreign (Zh.-Zh. Russo) and Russian (V.A. Eugensiht) researchers studied the nature of collective expression of will.

Thus, according to V.A. Eugensiht, will is a deterministic and motivated desire of a person to achieve a goal, and will is a process of mental regulation of the behavior of subjects ^{[15, 24]} According to him: "The volitional process itself as a single regulatory process is a manifestation of will. The expression of will is the fixation of this regulatory process, allowing it to be recognized and evaluated" ^{[15, 121]}. The scientist drew attention to the fact that the will is not yet an action expressed in the outside world, but so far only the desire to achieve the goal. "Will is a mental process of conscious management of activities that eliminate difficulties and obstacles to the realization of the set goal" ^{[13, 201]}.

In turn, it is impossible to express will without will, and will is the primary element of any action. D.A. Kerimov also draws attention to this, who says: "the motive force of any conscious action – indifferent, individual or social – is the will. It is the will that is the practical implementer of a need, interest, goal, attitude" ^{[8, 417]}.

Hence, in order to become an expression of will, the will must manifest itself in the outside world in such a way that it is perceived by other subjects of law, therefore, the concept of "will" in conjunction with whatever other legal category it is used remains a psychological category that relates only to the subject and does not exist outside of it. This property of the will makes it impossible to know it before expressing it outside the subject. Only when the expression of will has occurred, it is possible to find out and determine the will based on the results of the expression of will and give it an assessment.

The developer of the collective will, J.J. Rousseau, in his work "The Social Contract or the beginning of political Law" expressed his vision as follows: "Thus, I assert that sovereignty, being only the fulfillment of the general will, cannot be alienated and that the sovereign, being a collective being, is able to represent only himself; authority can be transferred, but not the will" ^{[21, 135]}.

It seems that the will of the people then matters when it can be called the will of the majority of the people, and it can become such when the majority of the co-directed wills of citizens are revealed during the voting in elections (for accuracy, it can be noted that the features can be established by creating with the help of legal regulation of the rules of various electoral systems (majority, proportional, mixed and so on), then the concept of "majority" is used taking into account the specified context), i.e. the majority of votes of voters expressing their agreed will for a certain political decision was submitted for the option proposed at the vote, and in this case, we are talking about the result of the will of the people. Thus, the power of the people is manifested in the functioning of institutions that make it possible to identify the will of the people, its decision on a particular issue, the mechanism for transforming the will of the people, through the expression of will in the forms established by law, into a political decision made on the basis of the majority, which is the result of the will of the people.

With this approach, democracy is impossible without a special integrity – a people having a common will (consisting of the majority of the wills of other individuals, and the wills of these individuals are coordinated – aimed at making a certain decision), a qualified subject of power and capable of independently, having the quality of sovereignty, making decisions by transferring power to their chosen ones who carry out its practical application.

In this regard, Zh.-Zh. correctly noted. Rousseau: "In order for the will to be universal, it is necessary that all votes be counted… The sovereign will is determined by the "vote count"..." [quoted by 7, 118].

In this connection, the will of the people acts as a form of detecting the will of the people and bringing it to the attention of citizens. At the same time, it should be noted that the will of the people is possible only under the conditions established by the state, namely by giving voters the opportunity to vote for political decision-making and creating a system of election commissions in charge of counting votes. In other words, voters have the legal means to express the will of the people, and the relevant body identifies it on the basis of the voting results.

The will of the people, reflected in the forms defined by the legislation, is in unity with the will of the people and is not identical with it, treating it as content to form. In this connection, the will of the people and its expression correlate with each other as content and form in dialectics and are not subject to identification with each other.

The will of the people (content) through voting by submitting a majority of votes for the resolution of a political decision, reflected in electoral documents, acquires the force of the will of the people (form), resulting in a political decision that generates legal consequences in the form of the exercise of sovereignty and the transfer of power from the people to the elected authorities. Hence, the will of the people consists in unity and in the presumption of conformity with the will of the people, and its result is a political decision for which the majority of voters voted. In turn, it is proposed to consider the will of the people when voting as an authoritative act of realization of the supreme power of the people, representing the sum of the will of citizens, and the will of an individual citizen when voting as an authoritative act of making a political decision based on the citizen's share in the supreme power of the people.

The citizen's participation in voting also implies the realization of the citizen's will for a particular political decision, which means an appropriate political choice from among the options offered to the citizen in the ballot. Moreover, this choice should be reliably taken into account in official election documents, without which the procedures of democracy are impossible.

In this connection, it is incorrect that the electoral legislation does not take into account this circumstance, determining the sufficiency of a citizen's turnout by the presence of his ballot in the voting box, linking this only with the possibility of its detection by the election commission.

Also, by itself, reflecting the will of a citizen in the ballot is not enough, because it is also necessary that the will of a citizen be reflected in the official election documents of election commissions or referendum commissions, as well as similar entities endowed with appropriate public functions. After all, it is with these documents that the law connects the onset of legal consequences in the form of voting results, determining the results of elections and referendums, and others, as evidenced by the above-mentioned norms of law.

Thus, according to paragraph 8 of Article 68 of the Law on Basic Guarantees of Electoral Rights "8. Direct counting of votes of voters, participants of the referendum is carried out by members of the precinct commission with the right of decisive vote located in the ballot boxes."

In accordance with sub-paragraph (e) of paragraph 2 of Article 67 of the Law on Basic Guarantees of Electoral Rights, the protocol on the results of voting must contain, including the lines of the protocol: the number of voters, referendum participants included in the list at the end of voting; the number of votes for each of the positions contained in all ballots.

By virtue of paragraph 2 of Article 69 of the Law on Basic Guarantees of Electoral Rights "2. On the basis of these protocols on the results of voting, after preliminary verification of the correctness of their compilation, the higher commission, by summing up the data contained in them, determines the results of voting in the relevant territory, in the district, the subject of the Russian Federation, in the Russian Federation."

Thus, the detection by the election commission of ballots in the ballot box (including counting of ballots) is not enough, for the correct determination of the turnout of citizens, it is still necessary: 1) the correct direct counting of votes; 2) the correct reflection of the counting data in the protocol on the results of voting; 3) the correct summation by the higher election commission of the data contained in the said protocols.

The aforementioned actions of the election commission will testify to the authenticity of the will of the people in relation to a certain political decision enshrined in the results of direct forms of democracy.

The will of a citizen, and this is its legal nature, is decisive for the occurrence of legal consequences provided for by law on the basis of this will. However, the will of a citizen, expressed in the turnout of his elections and other procedures of democracy, i.e. clothed in the form of an action (expression of will), acquires a legal sign in the form of its recognition by law as a legal fact entailing the emergence of electoral legal relations. In other words, only with the turnout of citizens, the law connects the onset of certain legal consequences, and hence the consideration of the will of the citizen at the elections. At the same time, attention should be paid to the fact that the will of a citizen who appeared at the elections, in relation to the results of the elections themselves, is formed by summing it with the will of other voters who appeared at the elections and, firstly, if their wills coincide with the winning political choice, it is expressed in an electoral document fixing the election result, secondly if their wills do not coincide with the winning political choice, it is separately expressed in an act of unilateral expression of will recorded in the election documentation and unrelated to the election results.

Thus, the will of the voter from the legal side can be considered on the following grounds giving the identified legal characteristics of this phenomenon. According to the method (form) of expression of will – the will of the voter is made in the form of an action, i.e. turnout for elections, since it is impossible in electoral legal relations to make a will by silence, inaction. By the type of expression of will, it is realized by an action of a legal nature, since it is impossible to realize the expression of will in elections by actual political choice. According to the role in the constitutional legal relationship, the will of citizens may be legal facts participating in the formation of the election result in accordance with the will of the voter and participating in the formation of the election result contrary to the will of the voter.

In order for the actions of voters to become a legal fact constituting the election result, legal actions on the part of citizens in themselves, in the form of a mark of a political election option on the ballot paper, are not enough. In other words, it is not enough for one voter to make a corresponding expression of will at his discretion. It is necessary to properly take into account the vote of the voter and the will of other persons on the political choice that coincides with him, which, according to the rules of electoral legislation, was expressed in a legal decision on the election results. Hence, the legal effect of the will of the voter depends on the will of other persons in the form of a co-directed expression of the will that determined the decision based on the election results (co-directed expression of the will of the voter).

In addition, the unilateral expression of the will of the voter who appeared at the elections is not enough in itself to take it into account as a legal fact in the legal relationship, since the legal effect of this action, if it coincides with the co-directed expression of the will of other voters, will be a decision based on the election results in the form of a certain political choice.

Thus, the voter who appeared, by performing a lawful action, guided by his will, reflects his will in the ballot, which is then taken into account by the election organizers in the protocol on the results of the vote. This account, with the correct reflection of the will of the voter in the said protocol, will be sufficient to become a legal fact as part of the said legal relationship, if it coincides with the will of those voters who chose the option of political choice, which, according to the rules of electoral legislation, is the result of elections (the winning result of political choice). 

It is for the realization of his will in real reality that a citizen carries out both the turnout for elections and other electoral procedures, and the expression of his will for them.

In turn, the voter who has appeared may reflect the will in the ballot that does not correspond to his will. This type of distortion of the will of the voter in which his inner will was not formed freely. When, for example, a voter was bribed, for example, or his will was suppressed in another way (for example, with the help of violence or the threat of violence). The so-called vice of his will. In this case, the voter, although he does not exercise his own, but a distorted will at the elections, nevertheless realizes his will by showing up for the elections.

That is, the will of the voter, formed and expressed externally in the form of an action in the form of a display on the ballot paper, will only generate a legal consequence in the form of a decision made based on the election results if it: firstly, was correctly displayed in the protocol on the results of the vote; secondly, coincided with the unidirectional will of other voters who chose the option on the ballot that, according to the rules of electoral legislation, is the winner of the election, the so-called election result.

It is important to understand that the unilateral expression of the will of the voter reflected in the ballot is a legitimate conscious volitional action, i.e. a legal fact committed in order to achieve legal consequences, and alone, in the absence of a will defect. This unilateral expression of will is connected with the will of the person who commits it, does not relate to events and entails legal consequences in the form of reflection in the protocol on the results of voting. Being reflected in this protocol, a unilateral expression of will acquires the significance of a legal fact for the emergence of a corresponding constitutional legal relationship, only if it is taken into account in the form of a sum with other similar expressions of will in relation to the same political choice, if this political choice is decisive for the decision on the election results.

Hence, the expression of the will of the voter is a legitimate conscious volitional action, i.e. a legal fact committed with the aim of achieving legal consequences, and alone, and unlike the event, it is connected with the will of the voter making a political choice, and entails constitutional and legal consequences. Thus, actions in the form of the will of the voter cannot be performed outside the electoral legal relationship, since they generate their occurrence and course.

In other words, unilateral expressions of the will of the voters are part of the decision of the voters based on the election results.  In particular, the submission of a vote by a voter, being correctly reflected in the protocol on the results of voting, does not directly entail the emergence, modification and termination of constitutional legal relations related to the election of a candidate, a list of candidates or the composition of an elected authority. At the same time, it is important that the submission of a vote as a unilateral expression of will should be directed precisely to the consequence that will entail a decision on the results of the elections.

Among the signs of a decision made based on the election results, it is possible to indicate the permissibility of the action and the direction of the voter's will to achieve a certain legal result, a decision made based on the election results is a legitimate act of will. On this basis, decisions made based on the results of elections differ from illegal actions with which the law associates the emergence, modification or termination of electoral rights and obligations, such as torts.

Thus, the voter's turnout for the elections is expressed through his will. The form of expression of will – written or electronic, is reflected in the ballot. The content of the expression of will is a specific political choice based on the options of political choice proposed in the ballot. The ratio of the will and the will of the voter, in which they come into conflict with each other, may entail legal consequences in the form of electoral disputes, for example, bringing to administrative responsibility for bribing voters in accordance with Article 5.16 of the Code of Administrative Offences of the Russian Federation (hereinafter referred to as the CRF on AP) ^[9].

As a rule, if the will of the voter is not suppressed, and there is also no vice of his will, then the voter can easily fulfill his desire by making a mark on the ballot regarding the desired political choice. In this case, the voter's desire does not conflict with the content of his will. In other words, there is no difficulty in implementing the desire into the content of the will of the voter, which cannot be said, for example, about civil law relations, where there is a problem of translating a citizen's desire into the content of the will reflected in the relevant document.

A.A. Andronatiy mentions a similar legal state in relation to another type of legal relationship: "At the same time, its content is more important than the form of expression of will. What a person expresses, describes, or otherwise expresses must correspond to what a person wants to do. Otherwise, there is a situation of inadequate, erroneous display or deliberately hidden true intention" ^{[1, 16-25]}.

Thus, the voter's turnout at the elections is a coincidence of the will and the content of the expression of will in relation to the political choice reflected in the ballot paper and executed in accordance with the procedure established by law.

In this connection, it seems that the unilateral expression of the will of the voter, namely the submission of a vote in relation to a certain political choice chosen by him indicated in the ballot, is part of the legal composition of the legal decision on the election results as a legal fact. It is the turnout at the elections that acts as a circumstance of making a decision at the elections, and also has legal significance in order to determine the proper administrative plaintiff when filing an administrative claim to challenge the decision, action (inaction) of the precinct election commission, the referendum commission related to the establishment of the voting results (paragraph 16 of Article 239 of the CAS of the Russian Federation).

Proceeding from the above, it can be stated that the meaningful property of voter turnout for elections is the expression of will on the part of the voter in the electoral law, which, firstly, cannot act as a decision based on the election results if the unidirectional decision on the election results does not coincide with the will of other voters, and secondly, it may be a circumstance of the formation of a unidirectional with the will of other voters, decisions on election results determined according to the rules established in the law, and in this case, form a focus on the onset of constitutional and legal consequences established by law for the relevant elected persons and the composition of elected authorities.

The electoral legislation is structured in such a way that it is possible to understand the will of the voter only if he showed up for the election. If a voter had a will, for example, corresponding to a "higher level of support", but the voter did not show up for the election, then it is impossible to know this will reliably, at least on the basis of legal rules.

In this connection, the reliability of the expression of the will of the people in decisions on election results is affected only by the turnout at the elections, which was taken into account in accordance with the rules of electoral legislation. The same voters who did not show up for the elections: reacted negatively or indifferently to the options of political choice set out in the ballot paper and then their will may go beyond the options proposed in the ballot paper. One way or another, it turns out that those citizens who did not show up for the elections, thereby declared the absence of their will in relation to the proposed options for political choice or do not want to express it.

Thus, the true (real) will of the citizens who did not show up for the elections was not developed and was not expressed by making a specific volitional effort in the form of turnout for the elections. It is impossible to determine the will of such citizens, since it has not been expressed in the outside world and, moreover, has not been expressed in accordance with the procedure established by law.

The will of a voter is a legitimate conscious volitional action, i.e. a legal fact committed in order to achieve legal consequences, and it is single-handedly and, unlike the event, it is connected with the will of a voter making a political choice, and entails constitutional and legal significance. At the same time, actions in the form of the will of the voter cannot be performed outside the electoral legal relationship, since they generate their occurrence and course. Hence, unilateral expressions of the will of voters are part of the decision of voters based on the election results. In particular, the submission of a vote by a voter, being correctly reflected in the protocol on the results of voting, does not directly entail the emergence, modification and termination of constitutional legal relations related to the election of a candidate, a list of candidates or the composition of an elected authority. At the same time, it is important that the submission of a vote as a unilateral expression of will should be directed precisely to the consequence that will entail a decision on the results of the elections. The actions of voters acquire legal significance in the form of a legal fact constituting the election result, in the form of the following legal composition: actions on the part of citizens, in the form of a mark of a political election option on the ballot (the commission by one voter at his discretion of the corresponding expression of will); correct accounting of the voter's vote and the will of other persons on the political choice coinciding with him, which according to the rules of electoral legislation, it was expressed in a legal decision based on the election results; the possibility of a legal effect of the will of the voter, in the form of codependency with the will of other persons in the form of a co-directed will of the person who determined the decision based on the election results (co-directed will of the voter).

The proposed provisions proceed from the non-contractual nature of the general volitional act of the people in direct forms of democracy, which is understood as a political decision (a political decision as a result of the expression of the power of the people is indicated, for example, in the Resolution of the Constitutional Court of the Russian Federation dated March 21, 2007 No. 3-p. ^[20]), adopted by a majority vote in the absence of an agreed (unanimous) the will of all citizens (the theory of real democracy). In contrast to this approach, the theory of the social contract (based on the concept of Rousseau Zh.-Zh. the social contract is a contract of everyone with everyone and everyone with everyone ^{[21, 11]} proceeds from the contractual nature of the general volitional act of the people, which is understood as a social contract based on the agreed (unanimous) will of all citizens (the theory of ideal democracy).

Due to the non-contractual nature of the general volitional act of the people, the legal consequences of making a political decision should apply to all citizens of the State, including both those citizens who expressed their will against such a decision and those citizens who did not express their will.

The proposed approach proceeds from the provisions on the differentiation of the will and the will of the citizen, as well as from the differentiation of the will (the general will of the people) and the will of the people (the general will of the people).

The will of a citizen is a motivated desire of a citizen to make a certain political decision. The expression of a citizen's will is the expression (objectification) of a citizen's will outside.

The will of the people (the general will of the people) is the motivated desire of the people to make a certain political decision. The will of the people (the general will of the people) is the expression (objectification) of the will of the people outside.

The will of the citizen, as well as the will of the people, is indefinable without its expression outside. The will of a citizen is objectified and becomes the will of a citizen through an act of individual voting. The will of the people is objectified and becomes the will of the people through the act of collective voting of all citizens of the state.

The process of expressing the will of a citizen consists of two stages: volition and expression of will. The will formation of a citizen is formed before voting and ends with the motivated desire of a citizen to make a certain political decision. The formation of a citizen's will should take place in conditions of freedom of choice and autonomy of the citizen's will. The will of a citizen is made by an individual vote of a citizen and is recorded in the ballot.

The process of expressing the common will of the people consists of three stages: volition, determination and expression of will. The will formation of the people is formed before the vote and ends with the motivated desire of the people to make a certain political decision (free will formation). The formation of the will of the people should take place in conditions of freedom of choice and autonomy of the will of the people. In contrast to the process of expressing the will of a citizen, the process of expressing the will of the people includes a stage of will determination, since there is a problem of determining the general will of the people. The will of the people consists in reliably determining the sum of the individual will of all citizens who voted (reliable will determination) and is recorded in the voting protocol (formal will determination). The will of the people is carried out by a collective vote of all the citizens who voted (a reliable expression of will) and is fixed on the basis of the will of the people in the adopted political decision (a formal expression of will).

The author proceeds from the existence of a refutable presumption that the citizen's will corresponds to his will. In practical terms, this means that, until proven otherwise, the will of the citizen corresponds to the result of individual voting expressed in the ballot. This presumption is refutable when the court establishes, for example, the following types of distortions of a citizen's will (based on their nature): 1) inconsistency of a citizen's will with his will (for example, bribery of a voter); 2) formation of a citizen's unfree will (for example, forcing a voter to vote for a certain decision); 3) falsification (for example, forgery of a ballot paper) or unintentional distortion (for example, a technical error) of a citizen's will.

The author proceeds from the existence of refutable presumptions about the conformity of the will of the people to his will and the conformity of the will of the people to his will. In practical terms, the first presumption means that until proven otherwise, the will of the people corresponds to the result of the collective vote expressed in the adopted political decision. The second presumption means that until proven otherwise, the result of the vote count corresponds to the voting protocol. These presumptions are refutable when the court establishes the following types of distortions of the will of the people (based on their nature): 1) inconsistency of the will of the people with their will (for example, bribery of a qualified number of voters); 2) formation of the unfree will of the people (for example, forcing a qualified number of voters to vote for a certain decision); 3) inconsistency of the formal will of the people (voting protocol) with its authentic will on the basis of the vice of the will of the people (for example, voting for "duplicates") or other distortions of the will of the people (for example, the formation of the final voting protocol based on incorrect data of the primary voting protocols); 4) falsification (for example, forgery of the voting protocol) or unintentional distortion (for example, a technical error) of the will of the people. The above-mentioned types of distortion of the will of a citizen and the people are proposed to be considered as defects of the will of a citizen and defects of the will of the people, with the exception of falsifications and unintentional distortions (technical errors) that are not related to defects of the will. It is proposed to consider these types of distortions of the will of a citizen and the people as special constitutional and legal torts. In turn, the will of citizens who did not take part in the vote (did not express their will) should not have legal significance and cannot indicate distortions of the will of a citizen or people.