Obama’s election commission, the Voting Rights Act and the U.S.’s international commitments

As the presidential voting commission that Barack Obama announced in his recent State of the Union address prepares to convene, the U.S. Supreme Court appears likely to strike down Section 5 of the 1965 Voting Rights Act, which could, in effect, render any proposed reforms of the president’s commission toothless.

While Obama’s commission will reportedly focus specifically on Election Day issues and not on broader issues of electoral reform, the Court’s striking down of Section 5 – which mandates that states with a history of racial discrimination submit changes to voting laws to the U.S. Justice Department for preclearance – could mean that restrictive voter registration laws, racial gerrymandering and stringent identification requirements become more common throughout the country.

Supreme Court watchers are in general agreement that the Court, which heard oral arguments on the Voting Rights Act Wednesday, is poised to strike down Section 5, likely in a five-to-four decision.

This would mean that for millions of people, the voting experience on Election Day that Obama’s commission hopes to address will largely be a moot point. The outcome of the election will already have been pre-determined to a very high degree before anyone even steps in line to vote on Election Day.

Although many commentators – and Supreme Court Justices – are now proclaiming that the 1965 law is outdated and that it unfairly singles out certain states, the fact is that more lawsuits were brought under the Voting Rights Act from 2010-2012 than in the previous 45 years combined. The Obama administration used the Voting Rights Act in the last election cycle to counter a wave of Republican measures that included strict voter ID requirements, redistricting maps and new ballot formats.

One of the most substantial victories for fair elections was the striking down of Texas’s heavily gerrymandered congressional district maps, which had been adopted by the Republican-dominated Texas legislature following the 2010 census. A U.S. federal court ruled in August 2012 that the maps redrew districts in a way that reduced the influence of minority voters, and specifically discriminated against black and Hispanic voters.

In another major victory, a federal court in Florida blocked key provisions of a state law that sought to discourage voter registration drives in the state. In a June 2012 ruling, the judge wrote that Florida’s restrictive law “make[s] voter registration drives a risky business. If the goal is to discourage voter registration drives and thus make it harder for new voters to register, the 48-hour deadline may succeed.”

But perhaps the most widespread issue in the last election was the rash of voter ID laws that were adopted around the country, but were largely struck down by the courts. In a brief filed last August, Republican attorneys general from six states covered by Section 5 complained that the Voting Rights Act prevented them from implementing stringent identification requirements to suppress minority voters. Two of those states, South Carolina and Texas, conceded that the Voting Rights Act stopped them from implementing a voter suppression law their governors had already signed.

The long waiting times on Election Day that many voters have to endure are really just the tip of the iceberg of an electoral system plagued by partisan manipulation and racial biases. In a recent interview on Democracy Now, NAACP Head Benjamin Jealous called it “the hyperpartisanization” of election administration. He noted that in the secretary of states’ and county clerks offices around the country, there are “people coming in with a real, you know, partisan purpose in what should be a very kind of democratic—small-d—mission.”

Jealous welcomed the convening of a presidential commission as needed to address voter suppression and attacks on voting rights, noting that in Florida alone, long Election Day lines around the state may have turned away more than 200,000 frustrated would-be voters who gave up and went home before they cast ballots:

This has been a strategy to suppress the participation of working-class people, of senior citizens, of students, who tend to vote for the Democrats, by making it unbearable. And, you know, you can travel around as I do in different cities, and on the wealthy side of town the lines are moving, and near the universities and the poor parts of town, they’re stuck. And this is the, if you will, the most basic, most rudimentary form of voter suppression. It’s—what we’ve seen since 2000 is, whether it’s secretaries of state or whether it’s county clerks, you know, the folks who are running it in their county, it’s become very politicized, and folks really making, in many cases, explicitly political decisions about where they even put these machines, who gets a few machines and long lines, who gets a lot of machines and no lines, trying to skew the outcome.

The root problem here, of course, is that partisan interests are given free reign over election administration in the United States. From the national level to the state level to the local level, elected representatives and partisan hacks manipulate and game the system to ensure preferred electoral outcomes, in a system generally out of step with international electoral standards.

As the OSCE Office for Democratic Institutions and Human Rights rather mildly put it in its final report on the 2012 U.S. election, released on Feb. 13:

General elections are administered at the state level and there is no federal election management body with oversight responsibilities. On the state level, administrative authority is vested in the respective state secretary or state election board. However, the greater part of election administration is typically delegated to county or lower-level election officials,12 resulting in a wide variety of electoral practices across the country.

Overall, the election administration performed their duties in a professional and transparent manner and enjoyed the trust of the majority of stakeholders. The composition of election administration bodies varies across states. While some senior election officials are appointed, others are elected. Election administration bodies are often partisan, although 19 states and the District of Columbia provide bipartisan or independent bodies. Very few OSCE/ODIHR LEOM interlocutors raised concerns about the impartiality of county election officials. However, some county-level election supervisors ran on party tickets for re-election in 2012, raising possible conflicts of interest.

In order to avoid these conflicts of interest, the OSCE recommended that “if senior election officials at state and lower levels are elected, the states could consider holding such elections in non-federal election years, to avoid any real or perceived conflicts of interest.” Further, “there should be a national body with sufficient resources and outreach capacity to provide guidance on election administration and serve as a central clearinghouse to develop good electoral practices. Congress should ensure that such a body has the necessary financial and human resources to fulfil these duties in an effective manner.”

The commission being convened by President Obama, however, appears to have a much more limited mandate. It will be chaired by Bob Bauer, former general counsel for the Obama campaign, and Ben Ginsberg, former election lawyer for Republican candidate Mitt Romney’s 2012 campaign and is tasked with finding “common-sense, non-partisan solutions” to “reduce waiting times at the polls and improve all citizens’ voting experience,” Obama said.

In announcing the commission in the State of the Union address, the president said, “We can fix this, and we will. The American people demand it. And so does our democracy.”

Indeed, it does appear that the American people are ready for electoral reform, but Obama’s vision may be short-sighted in limiting the commission so specifically to this one issue of long lines at the polls. A poll conducted just after the Nov. 6 election found that an 88 percent majority supported an array of electoral reforms:

Eighty-eight percent of Americans who voted in last week’s election support establishing national standards for voting, including the hours polls are open, who is eligible to vote, and the design of ballots, according to a new poll by the John D. and Catherine T. MacArthur Foundation.  Currently, voting rules and procedures differ from one community to another, across as many as 10,000 voting jurisdictions, although the date of the Presidential election is shared by all.

Half of those polled are “strongly supportive” and an additional 38 percent are “somewhat supportive” of national standards.  Majorities of Republicans, Democrats, and Independents support consistent standards for national elections rather than the current approach of rules and procedures that can vary greatly from community to community.  The idea is so popular that it draws majority support from voters across all races, genders, incomes, and geographic regions in the survey.

With that kind of support for strong national standards for U.S. elections, it is slightly puzzling why Obama would choose to provide such a limited mandate to his presidential commission. While the establishment of this commission was generally well received by voting rights advocates, some were less than impressed.

Elisabeth MacNamara, president of the League of Women Voters, said that she was disappointed in the president for failing to take bold action.

“Setting up a commission is not a bold step; it is business as usual,” MacNamara said in a statement. “The president could have done much better by pointing to real solutions like that in legislation already introduced on Capitol Hill to require early voting, set limits on waiting times, provide for portable voter registration and set up secure online voter registration.”

Administration officials however do say that the commission is part of a larger plan to reform the election process. Assistant Attorney General Thomas E. Perez told The Huffington Post that options on the table include supporting election reform legislation, implementing regulations and taking other executive actions.

In considering these possible reforms, the administration would do well to recall the international obligations of the United States as a party to the International Covenant on Civil and Political Rights and the 1990 OSCE Copenhagen Document, as well as heed the recommendations made by the OSCE in its final report on the 2012 election.

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About The Compliance Campaign

Campaigning 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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