U.S. backsliding on commitments for democratic elections
Since the United States began submitting to international election observation following the disputed presidential contest of 2000, certain criticisms have reemerged year after year. While some progress was noted in 2008 and 2010, changes to the electoral framework since then have revealed a decided indifference of U.S. authorities in meeting international obligations on democratic elections.
The election observation missions of the Organization for Security and Cooperation in Europe – a 56-nation body to which the U.S. belongs, which is mandated with determining members’ adherence to election commitments laid out in the 1990 OSCE Copenhagen Document – have repeatedly pointed to systemic problems in the U.S. electoral framework.
In the 2004 election, the OSCE noted that “allegations of electoral fraud and voter suppression, primarily among minorities, were widely reported and presented to the EOM in the pre-election period.” The observers expressed concern that “the widespread nature of these allegations may undermine confidence in the electoral process.”
Following the 2008 election, Audrey Glover, the Head of the OSCE/ODIHR Limited Election Observation Mission, stated, “The controversies during the campaign over persisting allegations of election irregularities showed that electoral reform efforts must continue to address remaining shortcomings and allow voters to fully regain confidence in the election system.”
Redistricting and Gerrymandering
The OSCE has also noted the fact that “only a small proportion of the elections” for the 435 Congressional districts are actually competitive. “This was attributed largely to the way in which Congressional district boundaries are drawn so as to favour the incumbent party,” the OSCE observed.
The OSCE has recommended that “consideration could be given to introducing procedures for drawing district boundaries that will be based on criteria other than voters’ voting histories and perceived future voting intentions.”
Despite this recommendation, U.S. election authorities have continued the practice of gerrymandering, or drawing district boundaries with a high degree of predictability as to the outcome of the election. This questionable practice has become particularly pronounced in the current election cycle.
Because of population changes, 18 states had changes in their number of seats: Texas and Florida gained four and two seats, respectively, while Ohio and New York both lost two. Six states gained a single seat while eight lost one. These changes affect the number of votes each state will cast in the Electoral College for the 2012 presidential election.
The 2010 census showed an enormous population increase in Texas, in particular, with over four million new residents, the vast majority of whom are Latinos. That growth required the State of Texas to redraw its electoral districts for the U.S. Congress, the State Senate, and the State House of Representatives, in order to comply with the Constitution’s one-person, one-vote rule.
Texas is a “covered jurisdiction” under Section 5 of the Voting Rights Act of 1965, which requires states with a history of discrimination to submit any changes they make to their election procedures to the U.S. Department of Justice or the D.C. Circuit Court for preclearance. Preclearance is necessary to demonstrate that the proposed changes “neither [have] the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.” In July 2011, the Texas legislature submitted new electoral maps to the D.C. Circuit Court for review.
The U.S. Justice Department voiced opposition to preclearance, alleging the Texas legislative plan unfairly discriminated against minority voters by giving no “electoral opportunity” for Latinos to be elected.
The most heated fight surrounds Dallas and Fort Worth, where Republicans drew congressional districts that are largely rural, except for small portions that include urban neighborhoods where minorities live. Minority groups complain that despite an 83.7 percent growth in the Latino population and a 34.1 percent increase in African Americans in Dallas County, the Texas legislature did not create a single new congressional district where minorities could realistically succeed.
While the pre-clearance process was pending in Washington, D.C., various plaintiffs brought suit in Texas, claiming that the Texas maps violate the U.S. Constitution and Section 5 of the Voting Rights Act. Noting that the D.C. Court could not finish its work in time for Texas to conduct its 2012 primary elections, the U.S. District Court for the Western District of Texas, based in San Antonio, produced its own interim plans. However, the court produced maps which had little bearing with those proposed by Texas’ Republican-controlled legislature.
To decide the validity of the San Antonio maps, Texas filed a motion with the U.S. Supreme Court, which argued in January 2012 that the U.S. District Court should not have ignored the state legislature’s plans when drafting the interim map. On February 28, the federal district court submitted new maps ensuring that both the Republican and the Democratic Party receive two of the four new congressional seats each.
The League of United Latin American Citizens, the NAACP, and three other groups criticized the new maps, arguing they don’t do enough to guarantee minority voters have equal representation. The maps, they explain, reflect the same “intentional discrimination” as the Texas legislature’s maps and either split up minority groups so that their candidates can’t win, or pack minorities into only a handful of districts.
The minority groups have now proceeded to ask the D.C. Circuit Court to expedite its ruling on whether the Texas Legislature’s original maps violate the federal Voting Rights Act. Since national party rules require primary elections be held by June 26, failure to rule in time would mean that this year’s Texas elections would be held under the temporary maps proposed by the San Antonio court.
Minority representatives hope that a favorable decision from the D.C. Circuit Court would compel the federal district court to alter districts ruled to be in violation. In such a case, the Texas primaries would be pushed back for a third time. However, the San Antonio court is not bound to make changes to the 2012 maps based on what is handed down from the three-judge panel in Washington, DC. In that scenario, minority groups would likely appeal to the U.S. Supreme Court.
In addition to the redistricting controversies, another contentious issue emerging in the current election is regarding the U.S.’s problematic election administration and voting registration system.
In 2008 and 2010, the OSCE noted that the decentralized nature of the U.S. electoral system creates vulnerabilities “in particular with regards to the integrity and complexity of voter registration, voter identification and electronic voting machines.” The OSCE observed that “the possibilities to verify the correctness of the voter register and to crosscheck it with neighboring states, in order to avoid double registrations or multiple voting, are limited and not widely used.”
With these international concerns unaddressed by U.S. election authorities, the systemic problems of the decentralized electoral framework are becoming more pronounced.
In February 2012, research commissioned by the Pew Center on the States showed that the U.S. voter registration system is plagued with errors and inefficiencies, which “undermine voter confidence and fuel partisan disputes over the integrity of … elections.”
The Pew Center pointed out that “the paper-based processes of most registration systems present several opportunities for errors.” In particular, the system is unable to keep up with voters as they move or die. In turn, this can lead to problems with the registration rolls, “including the perception that they lack integrity or could be susceptible to fraud.”
The research reveals that:
- approximately 24 million – one in every eight – active voter registrations in the U.S. are no longer valid or are significantly inaccurate;
- more than 1.8 million deceased individuals are still listed as active voters;
- approximately 2.75 million people have active registrations in more than one state.
Americans are generally unaware of these registration problems. According to the study, one in four voters falsely assumes that election officials update registrations automatically. Additionally, more than two million provisional ballots were cast in 2008, requiring election officials to verify each voter’s eligibility. Almost half of those were rejected because the voter was not on the registration rolls.
Further, at least 51 million people – nearly one in four eligible citizens – are not registered to vote.
New restrictions on voting
In the past, one of the few positive developments in U.S. elections that international observers have noted was the effort to increase voter participation by same-day registration initiatives and the introduction of early voting in 2008 and 2010.
In 2008, the OSCE noted that “the increased possibility to vote early was a highly positive step for the U.S. electoral process.” That year, more than a third of American voters voted early: 18 percent of them cast their ballots at early voting sites, while 19 percent voted by mail. This was seen as a particularly positive step, because in past election cycles, hours-long lines effectively disenfranchised tens of thousands of voters.
Following the midterm elections of 2010, OSCE observers again noted the beneficial development of early voting, which facilitated the participation of millions of Americans and “eased any capacity problems that might have occurred.”
However, these positive efforts to increase voter enfranchisement are being rolled back in the current election cycle.
In 2011, state legislatures across the country put forward legislation restricting early voting, citing financial and administrative burdens and sometimes the risk of fraud. Laws restricting early voting were signed into law in Florida, Georgia, Ohio, Tennessee, and West Virginia. Bills are pending final approval in North Carolina, Georgia, and New Jersey.
New requirements have also been instated this year to make it more challenging for eligible citizens to ensure that they are registered to vote on Election Day.
Since the previous election cycle, a number of state legislatures have pushed legislation to regulate and restrict community-based voter registration drives. Bills placing new restrictions on voter registration groups have been proposed in seven states: California, Florida, Illinois, Mississippi, New Mexico, North Carolina, and Texas.
The bills have been signed into law in Florida and Texas, two states with a long history of restricting voter registration drives, although neither has reported cases of registration fraud in the past election cycle.
Another target in this election cycle is election day registration, also known as same day registration.
Prior to 2011, eight states – Idaho, Iowa, Maine, Minnesota, Montana, New Hampshire, Wisconsin, Wyoming – allowed for same day registration, meaning that citizens could register and vote at their local polling place at the same time. In addition, North Carolina allowed for same day registration for the early voting period and Ohio for the first week of early voting. In Connecticut and Rhode Island, election day registration was provided under special circumstances.
Several legislatures have moved to eliminate same day registration, with bills introduced in Maine, Montana, New Hampshire, North Carolina, and Ohio. Efforts to repeal election day registration have fallen almost entirely along partisan lines, with most Republican legislators supporting it, while all Democratic legislators opposing it.
The most widespread legislative development since the previous election cycle involves the imposition of stricter identification requirements on voters.
Prior to the 2010 midterm elections, only Indiana and Georgia had strict photo ID requirements on voters. Since then, laws have been introduced in Alabama, Kansas, Rhode Island, South Carolina, Tennessee, Texas, and Wisconsin. Bills were passed but vetoed in five additional states: Minnesota, Missouri, Montana, New Hampshire, and North Carolina. Moreover, a number of other states have active photo ID bills pending on ongoing legislative sessions.
Voting rights advocates maintain that the new legislation is designed to target a wide portion of the electorate – in particular low-income, young, and older citizens, and especially minorities – that do not have state‑issued photo IDs. It is estimated that 11 percent of U.S. citizens do not possess the required identification, and that millions of Americans could be disenfranchised by the new laws.
The largely unregulated role of private money in U.S. elections resulting from the 2010 Citizens United Supreme Court decision that allowed unlimited spending by corporations, unions and private individuals is another area of concern.
The vast campaign spending in 2010 and the widespread use of negative advertising led the 2010 OSCE election observation mission to describe a “dirty campaign environment” with “money playing a significant role in creating an uneven playing field between candidates.”
“Upwards of four billion dollars were spent on the campaigns, making it the most expensive mid-term election in the United States to date,” OSCE observers noted. “About three-quarters of that money was spent on political campaign ads on television and radio. The ads inundated the airwaves, made huge profits for many television and radio stations, and also turned off many voters.”
With a legislative attempt to mitigate the effects of Citizens United failing in 2010, the problem of out-of-control campaign financing is reaching new heights in the current election cycle. Since July 2010, the number of registered “Super PACs” spending unlimited amounts of money has increased to 354. As of March 6, they had reported total receipts of more than $130 million and independent expenditures totaling almost $98 million in the 2012 election cycle.
Other areas of concern
Since the last presidential election, many other important recommendations from the OSCE on how to improve the deeply flawed U.S. electoral system have remained unaddressed by U.S. policymakers. These include:
- decreasing the number of required signatures for nomination of independent or third-party candidates
- lifting the restriction of voting rights for felons and ex-felons
- providing full representation rights in Congress for all US citizens, including those of Washington DC and U.S. territories
- establishing minimum standards for access of international observers invited by the U.S. authorities
- introducing legal safeguards against possible partisan conduct of election officials
- promoting voter registration, including through civil education programs, and considering possibilities for ‘automatic’ voter registration based on other interactions of citizens with the state
- enhancing transparency and the integrity of electronic voting equipment
- reviewing the campaign finance system
But as the OSCE stated in its Needs Assessment Mission Report prior to the 2008 general elections, “several issues raised in previous OSCE/ODIHR reports, and those highlighted by OSCE/ODIHR NAM interlocutors, merit further attention.”
With Election 2012 now fully underway, it is becoming increasingly obvious that the only changes being made to the U.S. electoral system represent steps backwards rather than forwards.
Instead of heeding previous recommendations from the international community or further developing areas of progress – such as the implementation of early voting in 2008 – the United States is instead backsliding into an even less democratic electoral system.
Besides ensuring pre-determined electoral outcomes, these changes are also sure to further erode public trust in elections, leading to decreased participation in voting and more entrenched cynicism across the country.
They also demonstrate a profound double standard by the United States government, which often cites OSCE election-related commitments when criticizing other countries, but clearly cannot be bothered to live up to the same commitments at home.
About The Compliance CampaignCampaigning for a United States in compliance with its international obligations. Follow on Twitter here: https://twitter.com/compliancecamp Facebook: https://www.facebook.com/compliancecamp Comments, article submissions or news leads are welcome at compliancecampaign [at] gmail.com.
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