U.S. midterms fall short of international standards for democratic elections

With the “truly staggering” role of money in campaigns “overshadowing the real issues at stake in the elections,” Tuesday’s midterm elections in the United States failed to meet a number of important international commitments, election observers from the Organization for Security and Cooperation in Europe said in a press release issued Wednesday.

“This country has once again demonstrated that its commitment to democracy is undiminished,” said Isabel Santos, leader of the OSCE observers. “However, the amount of money involved in campaigns has become truly staggering. With certain individuals and groups now spending millions on elections – amounts wildly beyond the capacity of average citizens – there is increasing inequality in the process.”

Although the two main parties’ campaigns were widely covered in the media (which of course completely ignored the campaigns of smaller parties), much of the focus was on campaign funding and polling data rather than substantive policy issues, the observers noted.

“The campaign was active and competitive, but often with negative advertising and mutual accusations lowering the quality of debate and turning voters off. Discussion of the real policy challenges facing the country suffered as a result,” said Santos.

The observers further raised concerns over the lack of transparency in campaign financing:

The ability of independent special interest groups to produce and air campaign-style advertisements without disclosing their sources of funding limited the ability of voters to judge the information that they were presented with. This lack of transparency undermined the ability of legally mandated bodies to provide accountability. Further, the purely legalistic interpretation of what constitutes co-ordination between campaigns and political action committees undermined the legal framework intended to bring transparency to campaign spending.

Another area highlighted by the OSCE pertained to the systematic disenfranchisement of felons and ex-felons in many states around the country, as well as the lack of congressional representation for residents of Washington, DC:

Voting rights of felons and ex-felons are determined by state law and the content of these laws varies broadly. The United States, as all OSCE countries, has committed itself to guaranteeing universal and equal suffrage to all adult citizens. The lack of voting rights for felons, including permanent disenfranchisement in some states, is at odds with this commitment, as is the lack of a voting representative in Congress for citizens in the District of Columbia.

More generally, the OSCE was concerned by the “highly decentralized” legal framework governing elections in the U.S. “While the laws are well understood and the elections are professionally administered, the decentralized system results in varied access for both contestants and voters to the electoral system,” according to the statement.

Judicial rulings and legislative changes in recent years have significantly impacted the framework governing elections, including in the politically sensitive fields of campaign finance, redistricting and identification requirements. The observers expressed concern regarding requirements in some states that voters present photo identification in cases where the authorities do not freely and readily provide such identification.

“Governments have a responsibility to facilitate voting for their population, and I hope that efforts will continue to make access as simple as possible for all American citizens. The requirement in some states that voters must first acquire photo identification can potentially inhibit voting by some, particularly those at lower socio-economic levels,” said Santos.

According to a preliminary analysis by Wendy Weiser of the Brennan Center for Justice, these new practices have likely impacted the results of the elections in several key states. In the North Carolina Senate race, for example, state house speaker Thom Tillis beat Senator Kay Hagen by a margin of 1.7 percent, or about 48,000 votes.

At the same time, Weiser explains,

North Carolina’s voters were, for the first time, voting under one of the harshest new election laws in the country — a law that Tillis helped to craft. Among other changes, the law slashed seven early voting days, eliminated same-day registration, and prohibited voting outside a voter’s home precinct — all forms of voting especially popular among African Americans. While it is too early to assess the impact of the law this year, the Election Protection hotline and other voter protection volunteers reported what appeared to be widespread problems both with voter registrations and with voters being told they were in the wrong precinct yesterday.

Some numbers from recent elections suggest that the magnitude of the problem may not be far from the margin of victory: In the last midterms in 2010, 200,000 voters cast ballots during the early voting days now cut, according to a recent court decision. In 2012, 700,000 voted during those days, including more than a quarter of all African-Americans who voted that year. In 2012, 100,000 North Carolinians, almost one-third of whom were African-American, voted using same-day registration, which was not available this year. And 7,500 voters cast their ballots outside of their home precincts that year.

There were many irregularities reported across the country on and before election day, for example in Georgia, where more than 40,000 voter registrations went missing, most of them representing communities of color, who largely support Democrats.

Speaking on Democracy Now on Tuesday, Georgia state Representative Stacey Abrams described how this may have happened. The state of Georgia, she explained, headed by the secretary of state, requires that every registration form goes through a series of screens, including the Social Security Administration proof of citizenship.

“And the problem is that, according to experts, that proof could be a false negative almost 40 percent of the time, which means that you could have a 20-year-old who’s a college student without an ID, without a driver’s license, who submits his Social Security number and is rejected falsely but is never told that they’re rejected and is never told why,” she said. “And we think that a variety of these problems—clerical errors, screenings—these have all led to more than 40,000 of our applications not being properly processed.”

Ben Jealous, chair of the Southern Election Fund, further explained how Georgia’s secretary of state, Brian Kemp, may have been involved in impacting the failure to process the tens of thousands of voter registration forms.

“What is terrifying about Georgia,” Jealous said,

is you see how a man who could be a good man on most days, Mr. Kemp, can get worried, in a very public way, about the impact of these changes in who’s voting in Georgia and how it could impact his party, and then very publicly appear to be dragging his feet. The allegations that he made are so ridiculous, it’s just like hard to comprehend. Georgia’s law says as soon ink goes onto a voter reg form, it has to be turned in. So if I hand you a form at your door and you write down “Mickey Mouse,” I’ve got to hand it in. When you have a law like that, up to 10 percent of the forms can be impacted. Out of 86,000, he’s been able to find maybe 50. You know, if it was above, say, 8,600, we would be concerned, because it’s their own law that requires you to turn in these problematic forms. They’ve done such a great job, when there could have been 86,000, there’s 50.

Prior to the election, Kemp had publicly fretted about how many new Democratic voters were being registered in his state, further raising concerns about his role in intentionally disenfranchising would-be voters:

After we get through this runoff, you know, the Democrats are working hard. And all these stories about them, you know, registering all these minority voters that are out there and others that are sitting on the sidelines, if they can do that, they can win these elections in November.

The inappropriate roles that partisan secretaries of states and other election administrators play in U.S. elections have long been a concern of OSCE observers. As the OSCE Office for Democratic Institutions and Human Rights put it in its final report on the 2012 U.S. election:

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, resulting in a wide variety of electoral practices across the country. …

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.”

Needless to say, this has not taken place in the United States, which tends to brush off and ignore the recommendations from the international community on how to better meet its obligations on holding democratic elections (as well as all other international norms).