Amending the Constitution to ensure free and fair elections
A U.S. Senate vote is scheduled next month on a proposed Constitutional amendment to empower Congress to enact reasonable campaign finance legislation. The movement to amend the Constitution is a response to recent Supreme Court decisions such as Citizens United and McCutcheon, which overturned campaign finance laws on constitutional grounds, and is seen by many as the best chance to promote clean elections that aren’t dominated by a few wealthy oligarchs.
Considering that the highly unregulated campaign finance system of the United States has long been a concern of the international community, the vote could also be seen as a demonstration of the U.S. commitment to meeting its international obligations on holding democratic elections.
Although international election-related commitments are somewhat ambiguous on the topic of campaign finance laws, it is widely understood that unregulated private money has the potential for tilting the playing field in favor of a particular party or candidate, thus potentially violating the requirement in the 1990 Copenhagen Document for OSCE member states (including the U.S.) to “provide political parties and organizations with the necessary legal guarantees to enable them to compete with each other on a basis of equal treatment before the law and by the authorities.”
Following the 2010 midterms, OSCE election observers noted that “Money played a significant role, creating an uneven playing field between candidates. About three-quarters of the total of upwards four billion dollars was spent on political campaign ads on television and radio. The ads inundated the airwaves, turning many voters off.”
In its statement on the 2012 general elections, the OSCE noted “the unprecedented and often negative role played by private campaign financing [which] has a potential to impact negatively on the fairness of the process.”
The amendment being considered by the Senate in a vote scheduled for Sept. 8 would address some of these concerns by unequivocally empowering Congress to adopt laws geared towards curbing the undue influence of big money in U.S. elections. If the amendment passes by a 2/3 vote of both houses of Congress, it would then have to be ratified either by the legislatures of 3/4 of the states or by conventions in 3/4 of the states, depending on which means of ratification Congress proposes.
The full text of the amendment is as follows:
Section 1. To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.
Section 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.
Section 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.
From the perspective of the U.S.’s international election-related commitments, the amendment would likely be seen as a positive step in redressing some of the problems identified in the U.S. electoral system. As the OSCE’s Office for Democratic Institutions and Human Rights (ODIHR) explains in its “Guidelines for Reviewing a Legal Framework for Elections,” countries “may establish reasonable limits on private financing of political parties and candidates in order to preserve fair competition during elections and lessen incentives for corruption and undue influence in politics.”
When it comes to independent expenditures, the question at the heart of the Supreme Court’s 2010 Citizens United decision, ODIHR further explains that outside groups “should have the right to expend funds during a campaign, [but] those expenditures should also be subject to reasonable limitations and disclosure requirements.”
Recognizing that expenditure limits may be problematic in countries such as the U.S. whose constitutional framework considers the right to spend money in a political campaign to be protected as political speech, ODIHR nevertheless explains that “within the context of international good practice, however, a reasonable limitation on expenditures is acceptable because a state has an obligation to ensure that the free choice of voters is not undermined, or the democratic process distorted, by the disproportionate expenditure on behalf of any candidate or party.”
In this regard, a reasonable limitation can help promote the existence of a “level playing field,” says ODIHR, and “ensure that the campaign information received by voters does not disproportionately favor one contestant because that contestant is able to monopolize the flow of information through campaign expenditures.”
Numerous grassroots campaigns are mobilizing to put pressure on the U.S. Senate ahead of the Sept. 8 vote. The group Public Citizen is urging people to contact their senators to help build support for an amendment.
“Now is the moment for your senators to stand up for democracy against the enormous deluge of money in our elections,” says Public Citizen, warning that “a weak vote may make it difficult to bring the issue up again.”
According to an action alert by CREDO Action,
An overwhelming majority of Americans oppose the toxic influence of money in politics. But a conservative majority on the Supreme Court has systematically eroded barriers to the 1% buying elected officials.
Now we have a major opportunity to fight back.
On September 8, the Senate is scheduled to vote on a constitutional amendment to overturn Citizens United and other toxic Supreme Court decisions that have opened the floodgates to unlimited political spending by corporations.
CREDO is urging citizens to sign a petition stating that “Corporations and the ultra-rich shouldn’t be allowed to buy our elected officials by spending unlimited amounts of money influencing elections. Pass Senate Joint Resolution 19, which would amend the Constitution and overturn Citizens United.”
To add your name, click here.
As the U.S. points fingers, international guidelines expose American elections’ shortcomings
In a statement delivered to the Organization for Security and Cooperation in Europe’s Human Dimension Implementation Meeting in Warsaw on Tuesday, Gavin Weise of the U.S. delegation expressed support for the OSCE’s election observation activities and criticized countries that seek to undermine those efforts.
Weise reminded participants that in 1990, OSCE countries pledged to hold free elections in a manner that would be considered fair. “To assist participating States in fulfilling their commitments, ODIHR and the OSCE Parliamentary Assembly have provided their invaluable expertise, including through their elections observation efforts,” he said.
However, OSCE election observation has been undermined by certain countries, according to the U.S. representative:
The United States regrets that some [OSCE] participating States continue to call into question and seek to weaken the OSCE’s independent election observation efforts, implying that they impose double standards and other biases. Such positions disregard the strong monitoring capability that the OSCE has developed to assist participating States in implementing our commitments to hold free and fair elections.
Although he didn’t identify them by name, it was clear that he was likely referring to former Soviet countries such as Russia and Belarus, which have often cited double standards in the way that the OSCE assesses elections “east and west of Vienna.”
The irony of Weise’s statement is that the U.S. itself has been one of the most brazen violators of OSCE election-related commitments, repeatedly ignoring longstanding OSCE recommendations for improving the U.S. electoral system, and consistently undermining the ability of the organization to freely carry out its observation functions, to the point of threatening election observers with criminal prosecution.
Last year, in a jaw-dropping display of chauvinism and hostility, the Attorney General of Texas implicitly warned OSCE observers that they might find themselves in a Texas jail if they came within 100 feet of polling places during the Nov. 6 election, a move that not even authoritarian regimes such as Belarus have pulled in the past.
“It may be a criminal offense for OSCE’s representatives to maintain a presence within 100 feet of a polling place’s entrance,” wrote Texas Attorney General Greg Abbott to Ambassador Daan Everts of the OSCE’s Office for Democratic Institutions and Human Rights (ODIHR) in an open letter. “Failure to comply with these requirements could subject the OSCE’s representatives to criminal prosecution for violating state law.”
ODIHR Director Janez Lenarcic responded by reminding Texas of the United States’ international obligation to welcome election observers of the OSCE and grant them access to polling places.
“The threat of criminal sanctions against OSCE/ODIHR observers is unacceptable,” he said. “The United States, like all countries in the OSCE, has an obligation to invite ODIHR observers to observe its elections.”
Rather than apologize for those transgressions, Weise on Tuesday rather generically assured the OSCE of the U.S.’s willingness to cooperate with observers. “We welcome and encourage OSCE observation of elections in the United States,” he said.
The U.S. delegate then claimed that the United States is working in good faith to implement recommendations of the OSCE:
The United States continues to work to address issues raised by the OSCE, including discussing with state election authorities how to provide better access to OSCE observers. The United States will continue to discuss such issues within the OSCE. Various aspects of elections and in particular voting rights continue to the subject of headlines, editorials, court cases and robust public discourse within the United States; this as legitimate activity that strengthens our democracy. We urge all other OSCE States to do the same.
Interestingly, these assurances were offered on the heels of a new publication issued by the OSCE Office for Democratic Institutions and Human Rights which elaborated on the election-related obligations of OSCE participating States, including the U.S.
Entitled “ODIHR Guidelines for Reviewing a Legal Framework for Elections,” the document covers issues such as universal and equal suffrage, election administration, voter registration, equal treatment of political parties and their access to the media, and campaign finance. On many of these issues, the United States clearly falls far short of its commitments for holding elections that are genuinely free and fair, and it’s not clear what, if any, measures are being taken to improve the U.S. electoral system.
A close reading of the document makes clear that the United States is far from compliant with some of the most basic components of democratic elections. For example, the very fact that the U.S. has such a highly decentralized and unwieldy system of election administration in which electoral laws diverge wildly from state to state and even from county to county within individual states, is generally out of step with good electoral practice as identified by ODIHR.
As stated in the guidelines, “one electoral law regulating all elections is recommended, as this approach safeguards consistency in electoral administration and practices, and the unified implementation of the law in connection with all elections.”
In the U.S., rather than “one electoral law,” there are 51 (one for each state, plus the District of Columbia, which is denied representation in Congress in violation of international norms). Further, there is no central election commission in the U.S. to interpret laws, which are instead left to the local level, including partisan secretaries of state and county clerks.
This system of localized interpretation of national and state laws is out of step with another key recommendation of ODIHR:
Relationships between national and local authorities, as well as between election-administration bodies and other governmental bodies, should be clearly stated and defined. The areas of authority of election-administration bodies must be clearly stated and defined to prevent conflicts or overlap with the powers of other government bodies.
ODIHR also notes that “the structure of the election administration as established by the legal framework should usually include a central election-administration body,” which the U.S. lacks.
Further, national laws governing the registration of political parties, party and campaign finance, voter registration and criminal provisions related to electoral violations are of particular importance. Yet, the U.S. system is noteworthy for the absence of such laws.
This deficiency has led to significant problems in the U.S. voter registration system, among other issues. A report released last year by the Pew Center on the States found that the nation’s voter registration rolls are in disarray, with the potential to affect the outcomes of local, state and federal elections. One in eight active registrations is invalid or inaccurate, the report found, while one in four people who are eligible to vote are not registered.
These problems with basic election administration are not just embarrassing, they are also in violation of U.S. international obligations. As explained in the ODIHR guidelines,
The right to vote is only of full value if the legal framework makes it easy for a person to register to vote, ensures accuracy in voter registers, includes sufficient safeguards against fraudulent voting, and guarantees honest counting of votes and tabulation of results. One of the standards for voter registration and maintenance of registers is complete transparency.
In a section of the guidelines regarding the drawing of electoral constituencies, or districts, ODIHR offers tacit criticism of the U.S. system of redistricting and the election-rigging practice commonly known as “gerrymandering.”
“Electoral constituencies should be drawn in a manner that preserves equality among voters,” notes ODIHR, adding that “the manner in which constituencies are drawn should not circumvent the principle of equal suffrage.”
Yet, many U.S. states use an arcane and highly politicized system of drawing district boundaries based on past voting histories and racial composition in order to dilute the voting power of certain groups and virtually ensure preferred electoral outcomes. Following the 2010 census and redistricting process, the GOP gerrymandered congressional districts in such a way to guarantee Republican victories. In southern states, this largely meant re-segregating politics by isolating Democrats to urban districts represented by African-American legislators while leaving Republicans to divvy up the rest of the state.
This system of redistricting is how Republicans were able to keep control of the House of Representatives despite losing the popular vote nationwide by 1.4 million votes in 2012. Democratic House candidates earned 49.15 percent of the popular vote, while Republicans earned only 48.03 percent, meaning that the American people preferred a unified Democratic Congress over the divided Congress it actually got by more than a full percentage point.
But thanks to partisan gerrymandering, Republicans retained a solid House majority for the 113th Congress.
All of this is very much out of line with good electoral practices. As ODIHR states in its guidelines, “the legal framework should ensure that people or institutions establishing the boundaries are neutral, independent and impartial.” This is not the case in the United States.
There is also the matter of permanent felon disenfranchisement in many U.S. states, which contravenes the international obligation of the United States to ensure universal and equal suffrage to each citizen who has reached the age of majority.
Yet, in the U.S., an estimated 5.85 million Americans are denied the right to vote (or seek office) because of laws that disenfranchise people with felony convictions. Because of institutionalized racial disparities in the criminal justice system, these policies have resulted in one of every 13 African Americans unable to vote.
ODIHR has repeatedly expressed serious concerns over the disproportionate impact of felon disenfranchisement in the U.S.
As explained in its final report on Election 2012,
Minorities are disproportionately affected and it is estimated that 2.2 million African-Americans are disenfranchised. Prisoner and exprisoner voting rights are determined by state law and vary widely. Citizens from different states, who have committed the same crime, have their voting rights affected differently. Restrictions are often disproportionate to the crime committed and some states do not differentiate between types of crimes. Four states deprive all people with a criminal conviction of the right to vote, irrespective of the gravity of the crime or if the sentence has been served, unless pardoned by the state governor.
Another major problem in the United States is the discriminatory laws against independent, or “third,” parties. While the U.S. has long been considered a “two-party system,” the fact is, it is required to provide legal protections to all political parties to ensure that they are able to compete on a level playing field.
“The legal framework should ensure that all political parties and candidates are able to compete in elections on the basis of equal treatment before the law,” notes ODIHR.
This does not happen in the United States, where third parties are required to meet extraordinary challenges to even appear on the ballot, and even after they pass those hurdles, are excluded from televised debates and generally shut out of the media. This further violates U.S. election-related commitments, particularly the requirement for equal treatment and access to media.
This obligation is enshrined in the International Covenant on Civil and Political Rights, which guarantees the right of voters “to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”
ODIHR points out that the OSCE Copenhagen Document goes even further, by mandating that OSCE member states take proactive steps to provide political parties and organizations “with the necessary legal guarantees to enable to compete with each other on a basis of equal treatment before the law and by the authorities.”
For example, this would mean that the U.S. provides legal guarantees for independent parties and candidates to be included in televised debates and otherwise enjoy access to the media. This, of course, does not happen in the United States, so voters often go into the voting booth surprised to see other candidates listed on the ballot besides those nominated by the two dominant, quasi-official parties.
Campaign financing is another related matter of concern, with the potential for skewing the playing field and limiting real competition. As ODIHR states, “there is the risk of undue influence that can result from excessive or disproportionate contributions by a single contributor or group of contributors.”
This is particularly a concern in the United States following the 2010 Citizens United Supreme Court decision which effectively nullified U.S. campaign finance laws, opening the floodgate for unregulated private money in federal elections.
Ignoring all these issues, the U.S. delegate to the Human Dimension Implementation Meeting this week chose instead to point the finger at other OSCE countries that have allegedly failed to live up to their election-related commitments.
“Last year,” Weise said, “the OSCE concluded that shortcomings in presidential elections in Armenia and Bulgaria were caused not by inexperience but by a lack of political will on the part of state institutions, leading to low levels of public trust in the electoral process.”
In Ukraine’s parliamentary elections, he added, “international observers cited the lack of a level playing field due in part to abuse of government resources to favor ruling party candidates, a lack of campaign and political party financing regulation, and lack of balanced media coverage.”
Of course, the same exact thing could be said about the United States, using the guidelines just published by the ODIHR, but relatively speaking, the U.S. tends to get a pass. While some mild criticisms make it into ODIHR’s reports on American elections, for the most part, it seems that different standards are applied, which is where the eastern bloc’s complaints of double standards arise.
Nevertheless, there are many areas in which the U.S. could obviously improve, some of which have been explicitly identified by OSCE observers.
Essentially, before pointing fingers at others, the U.S. would do well to get busy in seriously tackling electoral reform at home.
Obama’s commission launched with earlier recommendations on U.S. election administration largely forgotten
More than six months since Election Night 2012 when President Obama stated that “we have to fix that” in a reference to long lines at polling places, the Presidential Commission on Election Administration was finally launched yesterday with the appointment of ten commission members, including two co-chairs.
With a limited mandate to shorten lines at polling places, promote the efficient conduct of elections, and provide better access to the polls for all voters, the Commission will present a final report to the president within six months of its first public meeting, expected to be held next month.
Headed by Co-Chairs Bob Bauer and Ben Ginsberg – a Democrat and a Republican – the commissioners are “experts in election administration, policy and procedures, or leaders from customer service-oriented businesses and industry,” according to the Commission’s official press release.
“The President’s expectation is clear,” said Bauer. “The Commission is charged with developing recommendations based on the best information available for administrative practices that afford voters the opportunity to cast ballots without undue delay and improve their overall experience.”
Election 2012 – like many U.S. elections in recent years – was marred by long lines in several states, especially Florida, Ohio and Virginia. The causes were typically a combination of broken-down equipment, insufficient training of poll workers, and an organized GOP effort to roll back early voting days, which increased the volume of voters on Election Day.
Yesterday’s announcement of the Commission’s composition received a lukewarm response from election reform advocates, some of whom pointed out that bold action is needed to tackle the U.S.’s many electoral problems, and the appointment of another commission – especially one with such a limited mandate – is anything but bold action.
“A number of election experts have expressed doubts that the panel will have much impact because the goals are modest,” reported NPR. Academics, activists, election officials and international observers have been studying ways to improve election administration for years, and it’s unclear what, if anything, new the commission can add to this knowledge in six months.
In a statement, League of Women Voters President Elizabeth McNamara lamented that Obama’s presidential commission is “a weak response to a big problem.” She expressed disappointment in Obama’s response to improving U.S. elections to date and reiterated LWV’s calls for “bold changes like those suggested in our four point plan to make elections free, fair and accessible.” Specifically, LWV wants to see secure online voter registration, permanent and portable statewide voter registration, expanded early voting, and improved polling place management.
Other election reform advocates were more optimistic about the new Commission, however.
Wendy Weiser of the Brennan Center, which has extensively documented the causes of long lines at polls and advocated various solutions, said in a statement:
We are delighted the president’s voting commission will soon be up and running. The commission will spotlight the urgent need to improve our election system to ensure it works well for all eligible Americans. We urge the commission to recommend bold solutions to modernize voting. America needs to upgrade how we register voters, when we vote, and how we manage polling places. We hope this will be a great step forward to improve the way America runs elections and ensure the system is free, fair, and accessible.
Rick Hasen, a law professor at UC Irvine and publisher of the Election Law Blog, explained that the commission is seeking to avoid contentious issues such as general voting rights in order to keep the panel from being bogged down in partisan squabbling.
“While including voting-rights advocates might make sense in the abstract, the Commission is walking a difficult political line to stay above the partisan fray as much as possible,” Hasen said. “Including voting-rights advocates would have led those on the right to call for more balance.”
McNamara, however, disagreed. “If they’re not talking about secure online voter registration that’s available to everybody, not just those with driver’s licenses; if they’re not talking about early voting; if they’re not talking about polling place resources; if they’re not talking about permanent and portable voter registration, then we just don’t believe that they’re going to be talking about the issues that really cause the lines on Election Day,” she said.
It could also be noted that the long waiting times on Election Day are really just the tip of the iceberg of an electoral system plagued by partisan manipulation and racial bias. As NAACP Head Benjamin Jealous has called it, “the hyperpartisanization” of election administration has enabled “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.”
He noted in an interview earlier this year 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 said 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. According a report published this month by the American Bar Association, there was a clear racial and political bias in the average waiting times, with blacks, Hispanics and Democrats facing significantly longer waits. According to the ABA’s data, black voters experienced an average 23.3 minute wait and Hispanic voters experienced an 18.7 minute wait, compared to an 11.6 minute wait by white voters. Similarly, strong Democratic voters had a significantly longer average waiting time (15.6 minutes) than strong Republican voters (11.4 minutes).
“And this is the, if you will, the most basic, most rudimentary form of voter suppression,” according to Ben Jealous. “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 line 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 last February:
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.
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.”
In its preliminary post-election statement issued in November 2012, the OSCE reminded U.S. authorities of the 87 recommendations of the 2005 report of the Commission on Federal Election Reform, the so-called Carter-Baker Commission, most of which have never been implemented.
The Carter-Baker Commission’s most important recommendation was for the United States to move toward nonpartisan election administration. Carter-Baker recommended in particular that states strip election responsibilities from partisan elected secretaries of state, placing them instead in the hands of professional election administrators appointed by governors and approved by a supermajority vote of state legislators.
Implementing this one recommendation from the final report of the 2005 Carter-Baker Commission would likely have a much greater impact in ensuring fair elections in the U.S. than any number of limited recommendations that might emerge from Obama’s newly appointed commission.
The problem, however, is that moving to a truly nonpartisan method of election administration could actually open up the U.S. electoral system to multi-party competition – including providing a level playing field for independent parties such as the Greens and the Libertarians – and this is the last thing that the two-party duopoly in Washington wants.
GOP’s election-rigging efforts expose underlying problem of partisan election administration
Led by disgruntled Republican state lawmakers still reeling from President Obama’s reelection in November, several key swing states are considering legislation to modify their electoral systems in a way that would help ensure Republican victories.
From Wisconsin to Virginia to Florida, GOP officials who control legislatures in states that President Obama carried in 2012 are considering changing state laws that give the winner of a state’s popular vote all of its Electoral College votes, too. Instead, Republican lawmakers want Electoral College votes to be divided proportionally, a move that many see as a crude attempt at election-rigging.
What the changes would mean, in effect, is that the system for electing a president would be broken down along a two-tiered proportional system. Not only would the national popular vote remain irrelevant in the selection of a president, but so too would statewide popular vote results. It would further diminish the democratic principle of “one person, one vote” by granting predetermined electoral votes to congressional districts whose voting preferences are already known — thus making elections a rather predictable exercise based more on the redistricting process than on an actual voting.
For example, in Virginia, which favored Obama over Republican Mitt Romney by 51.2% to 47.3% in 2012, a bill being pushed by Republicans would award the state’s electoral votes by congressional districts that were redrawn under Republican control in 2010 and are so gerrymandered that Obama would have won just four votes to Romney’s nine.
FairVote executive director Rob Richie described the Virginia plan as “an incredibly unfair and indefensible proposal” and said he testified against a similar proposal in Pennsylvania, whose lawmakers briefly considered splitting its electoral votes for the 2012 election before backing down amid a public outcry against the maneuver.
The bill’s sponsor, however, Republican Sen. Charles Carrico, claimed he offered the measure on behalf of his Southwest Virginia constituents, who, he said, feel their votes are devalued because they’re outnumbered by voters in densely populated metropolitan areas. “They are very adamant about the fact they feel like they have no voice in presidential elections,” Carrico said.
What he left unsaid, of course, is the flip side of this argument: that by prescribing greater electoral weight to the votes of underpopulated rural regions, the votes of densely populated metropolitan areas are devalued. This devaluation would have a disproportionate impact on minority voters who tend to cluster in highly populated urban areas. As the American Prospect pointed out, “This makes land the key variable in elections—to win the majority of a state’s electoral votes, your voters will have to occupy the most geographic space.”
Richie noted that the effect of the change, in Virginia and in other states considering similar legislation, would be to massively water down Democratic votes concentrated into a few urban districts — many of them cast by African Americans — while boosting the impact of whiter and more rural districts.
Further, by dividing Virginia’s electoral votes into individual districts, the state would simply recreate the same problems that non-competitive states face on a national level. “Because the statewide vote would be absolutely meaningless, the only political activity would be in the small number of districts where political activity might change the outcome,” Richie pointed out.
Nevertheless, the idea is being embraced by national Republicans, who are desperately attempting to remain competitive considering the country’s changing demographics and the eroding significance of the party’s “angry white guy” political base.
Republican National Committee Chairman Reince Priebus endorsed the idea earlier this month, and other Republican leaders are also lining up in support of it. “It’s something that a lot of states that have been consistently blue that are fully controlled red ought to be looking at,” Priebus told the Wisconsin Journal Sentinel, emphasizing that each state must decide for itself.
Democrats are growing increasingly vocal in their opposition to the potential change, pointing out that Obama won the popular vote with 65.9 million votes, or 51.1 percent, to Romney’s 60.9 million and won the Electoral College by a wide margin, 332-206 electoral votes. Despite this clear margin of support, however, it is doubtful that he would have been re-elected under the new system, if adopted by all the states considering the change.
According to one analysis, had all 50 states used the Republican plan, Mitt Romney would have defeated President Obama by 11 electoral votes — despite losing the popular vote by five million.
Virginia State Sen. Donald McEachin (D-Henrico) called the proposal one of Republicans’ many “sore-loser bills” related to elections and voting. “The bill is absolutely a partisan bill aimed at defying the will of the voters, giving Republican presidential candidates most of Virginia’s electoral votes, regardless of who carries the state,” he said.
John Marshall, publisher of the liberal blog TalkingPointsMemo.com, fretted that if enacted, the plan will “make it almost impossible for Democrats to win the presidency in 2016 and 2020, even if they match or exceed Barack Obama’s vote margin in 2012.”
Election law expert Richard Hasen, however, is reassuring Democrats that there is nothing to fear regarding these proposals, as they are unlikely to succeed. In an article titled “Democrats, Don’t Freak Out,” Hasen predicted that “the same self-interest that is leading Republicans to consider this move is also going to lead most of them to abandon it almost everywhere.”
Pointing out that a number of Democratic state legislatures, including California, have adopted the National Popular Vote plan, which would pledge all the participating states’ electors to the presidential candidate getting the most votes nationwide once enough other states adopt it, Hasen noted that the issue of “Electoral College reform” may be a can of worms that the Republicans don’t really want to open.
“Republicans have a lot to lose by going down this road,” wrote Hasen, concluding that “the Great Democratic Freak-out is unjustified.”
Only time will tell whether Hasen’s prediction is correct, but nevertheless, he may be missing the larger point regarding this debate, as well as the larger issue of the U.S. electoral system and the fundamental way that it is administered.
It’s worth pointing out that the only reason that Republicans are considering this change in the first place is because, following the 2010 census and redistricting process, they have already gerrymandered congressional districts in such a way to guarantee Republican victories. In southern states, this largely meant re-segregating politics by isolating Democrats to urban districts represented by African-American legislators while leaving Republicans to divvy up the rest of the state.
This rigged system of redistricting is how Republicans were able to keep control of the House of Representatives despite losing the popular vote nationwide by 1.4 million votes in 2012. Democratic House candidates earned 49.15 percent of the popular vote, while Republicans earned only 48.03 percent, meaning that the American people preferred a unified Democratic Congress over the divided Congress it actually got by more than a full percentage point. But thanks to partisan gerrymandering, Republicans retained a solid House majority for the 113th Congress.
An analysis by the Center for American Progress’s Ian Milhiser revealed just how firmly gerrymandering solidified Republican control of the House. “In order to take control of the House, Democrats would have needed to win the 2012 election by 7.25 percentage points,” Milhiser wrote. “That’s significantly more than the Republican margin of victory in the 2010 GOP wave election (6.6 percent), and only slightly less than the margin of victory in the 2006 Democratic wave election (7.9 percent).”
Essentially, the powers that be have set the threshold for electoral success so high that it’s become nearly insurmountable, and at best can be seen as an unfair barrier to competitive elections.
In short, this system has been gamed by partisan interests to virtually ensure certain electoral outcomes, a method of election-rigging that would be roundly condemned by the United States if practiced by countries such as Venezuela or Belarus. In an electoral system already dominated by two entrenched political parties that systematically prevent competition from smaller, independent parties such as the Greens and the Libertarians, political operatives are further undermining the democratic process by crippling the chances of their only real competitors.
These practices have drawn the attention of international election observers from the Organization for Security and Cooperation in Europe, which has been monitoring elections in the United States since 2002.
The OSCE’s final report on the 2010 midterm elections noted that due to gerrymandering, “There is a broad perception that a significant number of congressional districts are non-competitive as the outcome of the election could be predicted with a high degree of probability. In these mid-term elections, one senator and 27 candidates for members of the House were elected unopposed.”
The OSCE reiterated its recommendation contained in the final report on the 2006 midterm elections: “With a view to ensuring genuine electoral competition in congressional districts, 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.”
Needless to say, this recommendation from the OSCE — of which the U.S. is one of 57 participating states that has made certain commitments to holding democratic elections — has remained unheeded by policymakers in the United States. Indeed, as the current proposals make clear, the election-rigging activities are only intensifying as the Republican Party realizes that its electoral relevance is diminishing in the face of sweeping demographic changes across the country.
The underlying problem, of course, is that the United States uses a decentralized system of election administration in which partisan elected officials on the national, state and local levels are given free reign to draw district boundaries, set the electoral rules, and limit competition from other parties. All of these practices fly in the face of international standards for free and fair elections.
More irregularities emerge in Election 2012
A week after the international election observation mission of the Organization for Security and Cooperation in Europe noted serious shortcomings in Election 2012, irregularities continue coming to light. Concerns are growing, in particular, over Election Day voting procedures, partisan decisions to limit access to the ballot box and the long-term effects of the election-rigging practice known as gerrymandering.
The state of Arizona is coming under scrutiny for its practices related to issuing provisional ballots to Latino voters on Election Day and apparent attempts at voter suppression prior to the election. In the lead-up to the voting, local municipal offices in Arizona distributed voter ID cards that falsely provided information in Spanish that the election date is November 8, while the date was provided correctly as November 6 in the English version of the document. Although a spokesperson for the Maricopa County Elections Department said that no more than 50 of the documents were distributed before the mistake was caught, a local immigrant rights group said the damage had already been done.
“It’s a mistake that should not have happened,” said Petra Falcon, the executive director of Promise Arizona in Action. “To know that there’s information out there that’s wrong, it’s going to take a lot of work to make sure that people know the correct date.”
Even after that somewhat awkward mistake, Maricopa County distributed additional material in Spanish with the same false information. Bookmarks distributed by the Recorder’s Office were discovered to provide an incorrect Nov. 8 election date in Spanish, while English-language voters were correctly informed that Nov. 6 was Election Day. In this case, the Recorder’s Office said that 2,000 of the erroneous bookmarks were printed before the mistake was found.
The Campaign for Arizona’s Future, an organization dedicated to increasing voter turnout and removing Sheriff Joe Arpaio from office, criticized the partisanship and conflicts of interest in the county’s election administration bodies that may be contributing to these sorts of “mistakes.”
“The whole thing is like Bizarro World,” spokesperson Daria Ovide said. “This is the county recorder, she is an elected official and as I understand it, her responsibility is to manage the elections process in the county.”
The Arizona irregularities continued through Election Day, with civil rights groups claiming that the number of uncounted early ballots was unusually high and that many Latino voters were improperly given provisional ballots rather than being allowed to cast their vote at the polling place. Further, the ACLU has sent letters of complaint to state election officials expressing concern that the state’s voter ID law is disproportionately impacting minority voters in violation of the Voting Rights Act.
According to the Arizona Secretary of State, two days after the election there were more than 630,000 ballots yet to be counted, of which more than 160,000 were provisional ballots. Of those, about 115,000 provisional ballots were cast in Maricopa County (compared to 99,826 in 2008) and 26,194 provisional ballots were cast in Pima County (compared to 17,912 in 2008). As of Nov. 14, there were still more than 192,000 ballots that remained uncounted, prompting protests from the Latino community.
Advocacy groups working on registration of Latino voters have raised questions about why these provisional ballots were issued in the first place. These groups and others are seeking information on where such ballots were cast and if there has been a disproportionate impact on Latino voters, many of whom were voting for the first time.
“Arizona’s voters deserve an election system that works, and works equally for every eligible voter who comes to the polls,” said Alessandra Soler, executive director of the ACLU of Arizona. “At the very least, we have the right to know whether our ballots were verified and counted in a timely manner, and, if not counted, the reasons why. These questions must be answered.”
Arizonans of course were not alone in experiencing these sorts of irregularities. As Barbara Arnwine, executive director of the Lawyers Committee for Civil Rights Under Law, pointed out in a Nov. 13 column,
From the perspective of the command center at the voting-rights coalition Election Protection, last week’s election was the story of a system badly in need of reform – of voters who did everything right but were turned away due to registration problems; of rights being deliberately misconstrued or obstructed; and of hours and hours of waiting.
Call after call came in to our hotline – more than 89,000 on Election Day alone – from confused and concerned voters. Voting machines were jamming in Ohio, and ballots were being stored in boxes marked “provisional.” Pennsylvanians were being wrongly turned away for lack of government-issued photo identification, even though the voter-ID law was not in effect. North Carolina voters were told that voting for one party would be held on Wednesday instead of Tuesday.
Unthinkably long lines were commonplace – in some places, scandalous. The last vote in Fairfax County, Va., was cast 3 1/2 hours after the polls officially closed. Faulty machines, ballot shortages, registration errors, poorly trained poll workers, and overwhelming demand were to blame – no doubt deterring thousands from voting.
Some of the biggest problems were seen in the state of Florida, where voters waited in lines for up to eight hours to cast a ballot. Nevertheless, Republican Governor Rick Scott has repeatedly stated since Election Day that he did “the right thing” by cutting early voting from 14 days to just eight in Florida this year, and then refusing to expand those hours on the weekend before the election, despite clear evidence of high voter turnout.
During the 2008 election, about 55 percent of black voters cast their ballots during the early voting period that Scott had ordered reduced in 2012, according to data from the National Association for the Advancement of Colored People.
International observers from the OSCE noted in 2008 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 especially encouraging 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.”
Despite this positive feedback from the international community, states across the country sought to reduce early voting this year, with new restrictions adopted in Georgia, Ohio, Tennessee, and West Virginia.
In Florida, not only was early voting reduced by a week, but election boards were permitted to schedule as little as 48 hours of early voting.
The Florida governor came under such criticism for these decisions that he announced a review of his state’s voting processes with a particular emphasis on areas where voters waited four hours or longer to cast their ballots.
“I have asked Secretary of State Ken Detzner to review this general election and report on ways we can improve the process after all the races are certified,” Scott said in a statement. “As part of this evaluation, Secretary Detzner will meet with county election supervisors, who are elected or appointed to their position – especially those who ran elections in counties where voters experienced long lines of four hours or more.”
But as blogger Brad Friedman pointed out, the decision to appoint Detzner to review this process is fraught with conflicts of interest. “The only worse, less independent person who could possibly be chosen to head up a ‘review’ of what went wrong in this year’s disastrous election in Florida would be Scott himself,” wrote Friedman.
But since his hand-picked Sec. of State Ken Detzner carried out every single one of Scott’s horrendous, un-American orders to restrict voting and voter registration and to try and toss eligible voters off the rolls this year, resulting in even active-duty military voters getting purged, all while ignoring actual, massive voter registration fraud carried out by the Republican Party of Florida itself (until it could no longer be ignored), it may as well be Scott himself in charge of this so-called “review” in which Detzner has been assigned to tell us all why it was that, among other things, voters were still in line trying to cast their votes at 2am on Wednesday morning in Miami-Dade, even as the President of the United States was delivering his re-election victory speech in Chicago.
Another issue that has more fully come into focus since Election Day is just how big of an effect that partisan gerrymandering has had in ensuring continuing Republican dominance in the House of Representatives. As an analysis by Mother Jones magazine points out, “Americans woke up on November 7 having elected a Democratic president, expanded the Democratic majority in the Senate, and preserved the Republican majority in the House. That’s not what they voted for, though. Most Americans voted for Democratic representation in the House.”
Despite Democrats receiving more votes nationwide than Republicans (49 percent-48.2 percent), the GOP has secured a 233-195 seat majority in the House. This is the “second-biggest House majority in 60 years and their third-biggest since the Great Depression,” according to an analysis by the Washington Post.
So how did Republicans keep their House majority despite more Americans voting for the other party? Because they drew the lines. As Mother Jones explains,
After Republicans swept into power in state legislatures in 2010, the GOP gerrymandered key states, redrawing House district boundaries to favor Republicans. In Pennsylvania, Democratic candidates received half of the votes in House contests, but Republicans will claim about three-quarters of the congressional seats. The same is true in North Carolina. More than half the voters in that state voted for Democratic representation, yet Republicans will fill about 70 percent of the seats. Democrats drew more votes in Michigan than Republicans, but they’ll take only 5 out of the state’s 14 congressional seats.
To illustrate the point, Mother Jones created this graphic:
As the Center for Voting and Democracy explains, the entire redistricting process can be easily manipulated as a way to essentially rig the election before it takes place:
Redistricting encourages manipulation of our elections by allowing incumbent politicians to help partisan allies, hurt political enemies and choose their voters before the voters choose them. The current process is used as a means to further political goals by drawing boundaries to protect incumbents and reduce competition, rather than to ensure equal voting power and fair representation.
This problem has led to some recent attempts at reform around the country, such as in California, where an outside commission was adopted to handle the redistricting process. In Florida, a ballot measure was adopted that amended the state constitution so as to prevent lawmakers from drawing the lines in a way that would “favor or disfavor an incumbent or political party.”
But the reform process is slow-going. Attempts at national reform, such as the Fairness and Independence in Redistricting Act, would require state legislatures to appoint independent commissions that would be responsible for redrawing district boundaries, which would be prohibited from drawing lines based on partisan interests. The bill, however, has not made it out of committee.
A common theme, of course, running through many of America’s electoral problems, including the irregularities found in Election 2012, is the partisanship and conflicts of interest that underlie U.S. election administration. Whether it is partisan state legislatures drawing district boundaries to prevent competition or partisan election officials making decisions about who is allowed to cast votes and how those votes will be counted, the obvious problem is that partisans are running election administration at the state and local levels — in contrast to good electoral practices.
As OSCE observers delicately stated last week, in the United States,
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 election officials are appointed, others are elected, which raises possible conflicts of interest.
This language echoes previous OSCE statements, such as the final report on the 2010 midterms, which stated that while election administration in the United States “enjoys the overall confidence of stakeholders, the potential for possible conflict of interests of election administrators who run as party candidates remains.”
Due to this “potential,” the OSCE recommended that “if an election official wishes to be a candidate, or to campaign or actively support a candidate or a party, consideration could be given to requiring the official to resign and to be replaced, due to perceived or real conflict of interest.”
It could be said that the OSCE is being overly kind in its assessment that the system “enjoys the overall confidence of stakeholders.” The obvious lack of confidence can be seen in the epic legal battles that now coincide with every election cycle and the allegations of fraud and misconduct that come from both sides. But whether or not it is being unduly diplomatic for whatever reason, the organization is correct in saying that the system provides for the possibility of conflicts of interest – to say the least.
In fact, a system that allows election administration bodies to be run by partisan activists, candidates and elected officeholders flies in the face of electoral best practices and international standards. As long as the United States continues to allow ideologues of one party or another determine electoral rules, draw district boundaries and dictate voting practices, the U.S. will continue to suffer from perennial controversies over elections and will continue to be out of compliance with international norms.
Texas threatens international election observers with criminal prosecution
In violation of U.S. international commitments, the Attorney General of Texas has threatened international election observers from the Organization for Security for Security and Cooperation in Europe with criminal prosecution if they come within 100 feet of a polling place in Texas.
“If OSCE members want to learn more about our election processes so they can improve their own democratic systems, we welcome the opportunity to discuss the measures Texas has implemented to protect the integrity of elections,” wrote Texas Attorney General Greg Abbott to Ambassador Daan Everts of the OSCE’s Office for Democratic Institutions and Human Rights (ODIHR) in an open letter yesterday. “However, groups and individuals from outside the United States are not allowed to influence or interfere with the election process in Texas.”
The letter ominously warns that OSCE election observers are not authorized by Texas law to enter a polling place. “It may be a criminal offense for OSCE’s representatives to maintain a presence within 100 feet of a polling place’s entrance,” wrote the attorney general. “Failure to comply with these requirements could subject the OSCE’s representatives to criminal prosecution for violating state law.”
ODIHR Director Janez Lenarcic responded with a strongly worded statement today expressing grave concern over the threat and reminding the state of Texas of the United States’ international obligations on welcoming election observers of the OSCE. The attorney general’s threat is at odds with the established good cooperation between OSCE observers and state authorities across the United States, Lenarcic said, adding that it is also contrary to the country’s obligations as an OSCE member state.
The ODIHR director shared his concerns directly with U.S. Secretary of State Hillary Clinton.
“The threat of criminal sanctions against OSCE/ODIHR observers is unacceptable,” he said. “The United States, like all countries in the OSCE, has an obligation to invite ODIHR observers to observe its elections.”
Lenarcic also pointed out that Abbott’s concerns over election observers attempting to “influence or interfere with the election process” were baseless. He underlined that OSCE election observers adhere to all national laws and regulations, as well as a strict code of conduct.
“Our observers are required to remain strictly impartial and not to intervene in the voting process in any way,” Lenarcic said. “They are in the United States to observe these elections, not to interfere in them.” These are the sixth United States elections the OSCE has observed, without incident, since 2002.
Much of the controversy this year appears to stem from an article posted at The Hill website which has spurred thousands of angry comments from right-wing readers. The article was filled with several inaccuracies and inflammatory language that largely obscured the fact that the OSCE’s election observation activities in the United States have been routinely taking place without incident for a decade.
“United Nations-affiliated election monitors from Europe and central Asia will be at polling places around the U.S. looking for voter suppression activities by conservative groups, a concern raised by civil rights groups during a meeting this week,” The Hill article stated. “The intervention has drawn criticism from a prominent conservative-leaning group combating election fraud.”
The Hill cited an appeal from voting rights organizations calling on the OSCE to focus its limited resources on conducting election observation in key states likely to be most affected by ongoing voter suppression activities. “Liberal-leaning civil rights groups met with representatives from the OSCE this week to raise their fears about what they say are systematic efforts to suppress minority voters likely to vote for President Obama,” The Hill reported.
At particular issue is an open letter the organizations issued to the OSCE, suggesting that observation in certain states would be most useful.
“Election observation is an important function of our democratic process and serves as an additional means of protecting the rights of those who are most likely to be disenfranchised and least able to advocate for their right to vote,” the letter reads. “To that end, we believe it is particularly important that safeguards, including election monitoring, are in place in key areas around the country, and believe your presence would be particularly critical in districts in Colorado, North Carolina, Ohio, Pennsylvania, Florida, Texas, Virginia and Wisconsin.”
The groups expressed their pleasure that the OSCE would be observing the 2012 election in the United States, as it has done in the past.
The valuable work of an impartial body like the OSCE in validating the reliability and fairness of our nation’s election systems has proven indispensable over the years. In particular, the OSCE’s recommendations outlined in the 2008 Election Observation Mission final report have been an important resource as our respective non-governmental organizations seek to reform our election system through voter registration modernization, automatic restoration of voting rights for formerly incarcerated persons, and integration of voluntary voting system guidelines as adopted by the Election Assistance Commission into state regulations.
This innocuous letter set off a firestorm on right-wing blogs and media outlets. In a report on Fox News full of misinformation, the anchorwoman incredulously asked a representative from a right-wing organization called True the Vote whether it is legally permissible for international election observers to monitor U.S. elections.
Despite the right-wing shrieks over UN monitors coming to interfere with U.S. elections, in fact, the OSCE is not part of the United Nations, but is recognized under the UN Charter as a regional organization – a group of 56 countries in North America, Europe, and Central Asia, of which the United States is a founding member. With a history rooted in the détente era of the 1970s, the organization took on a democratization and confidence-building role following the collapse of the Soviet Union. Election observation, along with conflict resolution, is one of its core activities.
As a signatory to the 1990 OSCE Copenhagen Document, the United States is obliged to accept monitors from other OSCE countries to observe its elections. The U.S. has taken part in dozens of observer missions over the years, and in line with its international commitments, has routinely issued invitations to the OSCE to observe its elections.
By fulfilling its obligations in allowing observers into the country, the United States is preventing setting a precedent for other, less democratic states, to ban these monitors. The Texas attorney general’s threat to arrest OSCE observers is therefore a fairly serious breach of U.S. international obligations, one that could put the future of OSCE election observation in jeopardy if other countries decide to follow suit.
In the past not even authoritarian dictatorships such as Belarus or Uzbekistan have dared to make these sorts of threats against the OSCE. In fact, the Belarusian government welcomed observers from the OSCE just last month. With the U.S. now setting this dangerous precedent however, it’s hard to say how it will play out in the future.
In an attempt to quell the controversy, Joao Soares a member of the Portuguese parliament who has been appointed to lead the observation mission, explained the general purpose of the observation mission.
“We are not coming to judge a result but to report about the process,” Soares said. “In a country so well known for its diverse citizenry, we will observe how inclusive the election process is in line with the country’s own laws and international election commitments.”
Soares has led the previous two OSCE election observation missions to the United States, in 2008 and 2010.
The U.S. State Department has also weighed in on the issue, with spokesperson Victoria Nuland pointing out in the daily press briefing yesterday that the U.S. welcomes OSCE observers in line with its international obligations.
The United States is “an open book and we want to continue to improve our society, and we don’t have any concern about being open to the world for observation, et cetera,” Nuland said. “The OSCE, the Organization for Security and Co-operation in Europe, as they always do at election time here and in other member states, has fielded a delegation to come and observe the U.S. elections, and we welcome that.”
Compliance Campaign 
