Marina Ottaway [Director, Middle East Program, Carnegie Endowment for International Peace]: "The new election law approved by the Iraqi parliament on November 8 has both positive and negative features. On the positive side, it will allow the voting to take place before the mandate of the present parliament expires and will thus prevent a constitutional crisis. The law has also avoided embedding confessionalism in the political system of Iraq, as other proposals under discussion would have done. On the negative side, however, the law does not address the substance of the problem of Kirkuk - the obstacle on which the legislation almost foundered - but simply postpones any discussion of it, creating a real possibility of post-election conflict. And the choice of a system of proportional representation with no minimum threshold for parliamentary representation and open lists is likely to contribute to the fragmentation of an already badly fragmented political spectrum - 296 parties and independent candidates have registered to participate in the elections.
The main obstacle to the passage of a new election law was the determination of who has the right to vote in Kirkuk, a city where Arabs, Kurds and Turkmens claim to have been the majority until Saddam Hussein's machinations and subsequent conflicts changed the population balance. Kurds argue that Kurds who were expelled have the right to return and thus to vote in Kirkuk, and many in fact have moved into the city since 2003. Arabs and Turkmens believe that many of the newcomers have simply been relocated there by the Kurdish parties and the Kurdistan regional government in order to facilitate the eventual annexation of Kirkuk by Kurdistan. Against this background, the composition of voter lists in Kirkuk became a bone of contention. Kurds argued that the voter list should reflect the 2009 population, while Arab and Turkmens favored using the lists prepared in 2004, which they claim reflect the natural composition of the population, before Kurds artificially inflated their numbers. Failure to solve the problem prevented provincial council elections to be held in Kirkuk and the surrounding Tamim province in 2009.
The compromise reached on November 8 is that voting will take place on the basis of 2009 lists, as Kurds demanded. As a concession to Arabs and Turkmens, however, in jurisdictions where population has increased by more than 5 percent a year since 2003, election results can be challenged and a process can be set up to verify that all those who voted had actually the right to do so - the law does not specify which criteria can be used to determine who had the right to vote where. It is clear that the potential for conflict after the elections is enormous. But while the law thus is quite problematic, simply postponing rather than solving the problem, it is less so than alternative solutions that were considered, including that of apportioning seats in Kirkuk among population groups, or of creating "compensatory" seats reserved for Arabs and Turkmens in order to make up for the increased migration of Kurds into the city. Such solutions would have embedded confessionalism in the Iraqi political system, creating precedent that would have been very difficult to overcome.
The decision to adopt an open lists system - allowing voters to choose not only a party but also specific candidates within it - was strongly encouraged as more democratic by the United States and international NGOs. When lists are closed, party bosses can decide which candidates in their party will probably be seated simply by placing them higher or lower on the list. If the list is open, voters' choices can modify the order. Iraq parliamentary elections of December 2005 were based on closed lists, the provincial council elections of January 2009 on open lists. There is no denying that the open list system decreases the power of party bosses and increases that of voters. In Iraq today, however, the main problem is less the excessive power of party bosses, but the tendency of all organizations to splinter. The open lists system may further weaken the parties, further complicating what will certainly be a very complicated process of cabinet formation after the elections."