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.
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.”
Excluding independent parties, non-debates violate U.S. election commitments
U.S. pro-democracy activists protest the exclusion of independent parties at the presidential debate on Oct. 3, 2012. (Associated Press)
With debate season in the United States now in full swing, the U.S. electoral system is continuing to demonstrate its institutional hostility to the candidacies of independent or so-called “third parties,” in violation of international commitments related to holding democratic elections.
In the presidential debate last week and the vice-presidential debate Thursday night, voters were only permitted to hear the perspectives of the two leading parties, while smaller, independent parties were prohibited from participating. This is likely a violation of U.S. election commitments as spelled out in the OSCE Copenhagen Document, which the United States signed in 1990.
This agreement requires OSCE member states to hold “free elections that will be held at reasonable intervals by secret ballot or by equivalent free voting procedure, under conditions which ensure in practice the free expression of the opinion of the electors in the choice of their representatives.” Further, OSCE countries must
respect the right of citizens to seek political or public office, individually or as representatives of political parties or organizations, without discrimination;
respect the right of individuals and groups to establish, in full freedom, their own political parties or other political organizations and provide such 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;
Although the dominance of the Republican and Democratic parties has long been established in American politics as a general fact of life, the international obligations of the United States require the authorities to strive to treat individuals and groups seeking office equally in order compete on something like a level playing field. In addition to enormous financial disadvantages and other institutional biases that third parties face, their exclusion from televised debates represent perhaps one of the most insurmountable challenges to independent candidates.
Without access to the media and denied the opportunity to present their views to the public, not only are the candidates denied their rights to compete “on a basis of equal treatment,” but voters are denied “the free expression of the opinion of the electors in the choice of their representatives.”
It is, as author and executive director of Open Debates George Farah explained recently on Democracy Now, a bipartisan conspiracy “to deceive the American people.”
The body that sets the rules of these events, the Commission on Presidential Debates, “sounds like a government agency,” Farah pointed out. “It sounds like a nonpartisan entity, which is by design.” But in reality, says Farah, “it’s a private corporation, financed primarily by Anheuser-Busch and other major companies, that was created by the Republican and Democratic parties to seize control of the presidential debates from the League of Women Voters in 1987.”
Every four years, the commission permits the major-party campaigns to meet behind closed doors and draft a secret contract that dictates the terms of the debates, which provides for the exclusion of third parties. As Farah points out,
Third-party candidates face extraordinary structural barriers—discriminatory ballot access, scant media coverage, loyalties of the political—in the voting public, enormous campaign finance disparities. So, if they manage to convince a majority of Americans that they ought to be included in the presidential debates, it’s outrageous that a private corporation backed by Anheuser-Busch, controlled by the two parties, is telling them no. It absolutely is a catch-22.
These exclusionary policies have consistently drawn the attention of international observers of U.S. elections.
Following the 2008 presidential election, for example, the election observation mission of the Organization for Security and Cooperation in Europe – which has been monitoring U.S. elections since the disputed Bush-Gore election in 2000 – noted that “reporting on third party and independent presidential candidates was marginal.”
“The four television debates between the candidates” in 2008 “were the highlight of extensive media coverage with an estimated total of around 70 million viewers,” the OSCE Parliamentary Assembly noted. “The two leading presidential candidates were the main focus of journalistic reporting and contestants extensively used paid advertising, leading to a very limited visibility of other political parties and candidates.”
The OSCE’s post-election report on the 2010 midterms pointed out “that the media tended to organize debates only between candidates of the two strongest parties, thus limiting access of third-party contestants.”
With the tightly controlled and exclusionary debate system run by the partisan Commission on Presidential Debates, the American people are denied true debates on substantive issues. In last week’s debate between Barack and Mitt Romney, for example, the two presidential candidates agreed with each other on far more issues than they disagreed on.
“When it comes to our tax code, Governor Romney and I both agree that our corporate tax rate is too high,” President Obama stated at one point, following up with: “On energy, Governor Romney and I, we both agree that we’ve got to boost American energy production, and oil and natural gas production are higher than they’ve been in years.”
Romney later reiterated their agreement on taxes, pointing out that on “taxation, we agree, we ought to bring the tax rates down.”
In all, the two candidates expressed agreement with each other on policy issues at least half a dozen times, while the word “disagree” showed up during the debate a total of zero times. And of course, this doesn’t even factor in issues that weren’t asked about during the debate because there is such a commonly understood bipartisan consensus, for example on the drug war, crime and punishment, and gun laws.
As the candidates prepare for further debates in the coming weeks, voters should at least be reminded that these are not real debates at all, but rather choreographed joint press conferences between the two dominant candidates. And the U.S. political class should bear in mind that this approach to debating and to elections in general – an approach that denies candidates the ability to compete and voters the ability to choose among a variety of viewpoints – is in violation of U.S. commitments on democratic elections.
Sidestepping international obligations, Dems reiterate ‘torture ban,’ endorse ‘universal values’
Demonstrators march on the 2012 Democratic National Convention on Sept. 2. (AP Photo/Gerry Broome)
The 2012 Democratic Party platform released yesterday offers a renewed pledge to close the prison camp at Guantanamo and reiterates President Obama’s ‘torture ban’ which he initiated his first week in office. In a section called “Advancing Universal Values,” the platform endorses the right of individuals “to speak their mind, assemble without fear, have access to information, worship as they please, and choose their own leaders.” Other universal values embraced by the Democrats “include dignity, tolerance, and equality among all people,” as well as the fair administration of justice.
“We must always seek to uphold these values at home, not just when it is easy, but, more importantly, when it is hard,” states the platform. It goes on to explain that upholding these values “is why the President banned torture without exception in his first week in office.”
What the platform fails to mention is that in fact there was no need for the president to “ban torture” in the first place, since torture has long been banned by both domestic and international law. Common Article 3 of the four Geneva Conventions of 1949 established a prohibition against torture, which was further codified by the 1987 UN Convention Against Torture. The Convention Against Torture provides a clear-cut definition of what constitutes the practice. As stated in Article 1:
[T]orture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
The Convention further unambiguously states that “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
As a state party to both the Geneva Conventions and the Convention Against Torture, the United States has adopted domestic legislation to ensure compliance with the treaties’ provisions. The War Crimes Act punishes any grave breach of the Geneva Conventions, including any violation of Common Article 3.
The Torture Statute, formally known as Title 18, Part I, Chapter 113C of the U.S. Code, provides for life in prison, or even the death penalty if the victim dies, for anyone who commits, attempts, or conspires to commit torture outside the United States. (Domestic incidents of torture are covered by state criminal statutes.)
The law consists of three sections (2340, 2340A, and 2340B), which define the crime of torture.
(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.
It is widely acknowledged that policies instituted by the previous administration openly violated these provisions of domestic law, and by failing to prosecute those crimes, the Obama administration is itself violating international law. It is not enough for Obama or the Democratic Party to simply reiterate that “the United States doesn’t torture.” There is a legally binding obligation under the Convention Against Torture to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction” and to “make these offences punishable by appropriate penalties which take into account their grave nature.”
Under the provisions of the Convention, a state party that is not fulfilling its obligations to prosecute torture may be referred to a committee to adjudicate the matter.
The Democratic platform’s reiteration of Obama’s ‘torture ban’ comes less than a week after Attorney General Eric Holder announced that CIA agents would face no charges over the torture and death of detainees while in custody. On Thursday, the Justice Department announced it was ending a criminal investigation that had been probing the deaths of two men: one in Iraq and one in Afghanistan. As Democracy Now reported, “Gul Rahman died in 2002 while being held at a secret CIA facility known as the ‘Salt Pit’ in Afghanistan. He had been shackled to a concrete wall in near-freezing temperatures. Manadel al-Jamadi died in 2003 while in CIA custody at Iraq’s notorious Abu Ghraib prison. His corpse was photographed packed in ice and wrapped in plastic.”
Eric Holder said in a statement on Thursday, “Based on the fully developed factual record concerning the two deaths, the Department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”
Holder did not explain precisely what that “fully developed factual record” may have entailed, nor did he expand upon what “admissible evidence” there was, and perhaps more importantly, what sort of inadmissible evidence might exist. Instead, he injected seemingly irrelevant details about other investigations into “any possible CIA involvement with the interrogation and detention of 101 detainees who were alleged to have been in United States custody subsequent to the terrorist attacks of September 11, 2001.”
“A number of the detainees,” said Holder, “were never in CIA custody.” This, of course, implies that a number of the detainees were in CIA custody.
Rights groups slammed the Justice Department decision. “That the Justice Department will hold no one accountable for the killing of prisoners in CIA custody is nothing short of a scandal,” said Jameel Jaffer, ACLU deputy legal director.
The Justice Department has declined to bring charges against the officials who authorized torture, the lawyers who sought to legitimate it, and the interrogators who used it. It has successfully shut down every legal suit meant to hold officials civilly liable.
Continuing impunity threatens to undermine the universally recognized prohibition on torture and other abusive treatment and sends the dangerous signal to government officials that there will be no consequences for their use of torture and other cruelty. Today’s decision not to file charges against individuals who tortured prisoners to death is yet another entry in what is already a shameful record.
The Center for Constitutional Rights also criticized the decision and noted the importance of independent investigations.
Once again, the United States has shown it is committed to absolving itself of any responsibility for its crimes over the past decade. Today’s announcement belies U.S. claims that it can be trusted to hold accountable Americans who have perpetrated torture and other human rights abuses, and underscores the need for independent investigations elsewhere, such as the investigation underway in Spain, to continue. Impunity does not always cross borders.
Marjorie Cohn noted that the announcement is just the latest in a long line of betrayals by the Obama administration.
Last year, Attorney General Eric Holder announced that his office would investigate only two incidents, in which CIA interrogations ended in deaths. He said the Justice Department “has determined that an expanded criminal investigation of the remaining matters is not warranted.” With that decision, Holder conferred amnesty on countless Bush officials, lawyers and interrogators who set and carried out a policy of cruel treatment.
Now the attorney general has given a free pass to those responsible for the deaths of Gul Rahman and Manadel al-Jamadi.
Both men died horrible deaths in U.S. custody. In 2002, Rahman froze to death after being stripped and shackled to a cold cement floor in the secret Afghan prison known as the Salt Pit. Al-Jamadi died after being suspended from the ceiling by his wrists. Tony Diaz, a U.S. military police officer who witnessed al-Jamadi’s torture, said that blood gushed from his mouth like “a faucet had turned on” when he was lowered to the ground. A military autopsy ruled al-Jamadi’s death a homicide.
As horrendous as they may have been, the two deaths are not unique. According to government data provided to the Associated Press, at least 108 people have died in American custody in Iraq and Afghanistan, most of them violently. However, only a quarter of those deaths have been investigated as possible abuse by U.S. personnel.
As the AP reported in Feb. 2009:
The figure, far higher than any previously disclosed, includes cases investigated by the Army, Navy, CIA and Justice Department. Some 65,000 prisoners have been taken during the U.S.-led wars in Iraq and Afghanistan, although most have been freed.
The Pentagon has never provided comprehensive information on how many prisoners taken during the U.S. wars in Iraq and Afghanistan have died, and the 108 figure is based on information supplied by Army, Navy and other government officials.
“Despite the military’s own reports of deaths and abuses of detainees in U.S. custody, it is astonishing that our government can still pretend that what is happening is the work of a few rogue soldiers,” said ACLU Executive Director Anthony Romero in response to the revelation. “No one at the highest levels of our government has yet been held accountable for the torture and abuse, and that is unacceptable.”
Constitutional lawyer Glenn Greenwald noted that the revelation proved that “the unstated premise of every torture debate — that it was safely applied to a handful of detainees — is false.”
The Democratic Party platform however brushes aside these concerns, blandly stating that “Advancing our interests may involve new actions and policies to confront threats like terrorism, but the President and the Democratic Party believe these practices must always be in line with our Constitution, preserve our people’s privacy and civil liberties, and withstand the checks and balances that have served us so well.”
The disconnect between these empty words and the demonstrable reality is profound. If the Democratic Party really believes that counter-terrorism policies must be in line with the Constitution and civil liberties, they should simply enforce the laws that exist on the books. As their platform states, “We must always seek to uphold these values at home, not just when it is easy, but, more importantly, when it is hard.”
Republican platform rejects international law
Riot cops stand in a downpour as they watch demonstrators marching through the streets of Tampa, Fla., to protest the Republican National Convention on Monday, Aug. 27, 2012. (AP Photo/Chris O’Meara)
Four years ago, the Republican Party platform included a plank that expressly stated the party’s support for principles of international law. “To be successful international leaders,” the 2008 GOP platform stated, “we must uphold international law, including the laws of war, and update them when necessary. Our moral standing requires that we respect what are essentially American principles of justice.”
While some might have questioned the sincerity of the Republicans’ actual commitment to international law after eight years of the Bush administration’s stated contempt for the Geneva Conventions and other international legal obligations of the United States, the party platform at least paid lip service to these principles and, significantly, described international law as reflecting American values.
This year, the term “international law” appears nowhere in the party’s platform. Neither do the terms “international norms,” “international obligations,” or “international commitments.” Instead, the 2012 GOP platform, adopted at the Republican National Convention yesterday, expresses disdain for the concept of “foreign law,” which it somewhat misleadingly equates with international law.
In a section called “American Sovereignty in U.S. Courts,” the 2012 platform states emphatically that “subjecting American citizens to foreign laws is inimical to the spirit of the Constitution.” The fear of “foreign law” is cited as “one reason we oppose U.S. participation in the International Criminal Court,” which the Republicans suspect could lead to “ideological prosecutions” of U.S. soldiers in The Hague.
“There must be no use of foreign law by U.S. courts in interpreting our Constitution and laws,” the platform states. “Nor should foreign sources of law be used in State courts’ adjudication of criminal or civil matters.”
The conflation of “international law” with “foreign law” has been well-established in Republican Party rhetoric for several years now, dating back at least to 2005 when the Supreme Court cited “the overwhelming weight of international opinion” in ruling that the death penalty for juvenile offenders was unconstitutional.
In reaction to that ruling, then-Attorney General Alberto Gonzales gave a speech at George Mason University Law School where he admonished the Supreme Court for its “use of foreign law in constitutional interpretation.”
“I am troubled by a growing tendency to rely on the laws and judicial decisions of foreign nations in interpreting the United States Constitution,” Gonzales said. “Foreign judges and legislators are not accountable to the American people. If our courts rely on a foreign judge’s opinion or a foreign legislature’s enactment, then that foreign judge or legislature binds us on key constitutional issues.”
Homeland Security Secretary Michael Chertoff also weighed in on the issue, calling the prospect of a United States government constrained by international law a “chilling vision” of the future.
“The fact is, whether we like it or not, international law is increasingly entering our domestic domain,” Chertoff said in a 2006 speech to the right-wing Federalist Society.
“The Supreme Court has begun to bring it through cases like Hamdan,” a reference to Hamdan v. Rumsfeld in which the high court cited the Geneva Conventions in ruling that hundreds of suspects being held without charges at Guantanamo Bay had legal rights.
Chertoff objected to the Supreme Court’s reference to the Geneva Conventions despite the fact that the U.S. Constitution states that treaties entered into by the U.S. government are the “supreme law of the land” and all four Geneva Conventions were long ago signed by the U.S. Executive and ratified by the U.S. Senate.
“International law is being used as a rhetorical weapon against us,” Chertoff said. “We are constantly portrayed as being on the losing end, and the negative end of international law developments.”
While Gonzales and Chertoff were speaking about different subjects – in one case objecting to the citing of international opinion in a Supreme Court decision and in the other objecting to citing international law as a binding obligation of the United States – the message of the two men were essentially the same: no “foreign” law, be it a legally binding treaty or an international norm based on “overwhelming international opinion” has any place in domestic jurisprudence.
At the time, the issue inspired spirited debate among policy wonks and legal scholars.
Frederic L. Kirgis, a law professor at Washington and Lee University, weighed in on the matter in an article for the American Society of International Law, in which he attempted to explain the difference between international law and foreign law.
“Foreign law is not the same as international law,” he wrote.
Foreign law is the law of an individual foreign country or, in some instances, of an identifiable group of foreign countries that have a common legal system or a common set of rules in a particular field of law. From the United States’ perspective, European Union law or the law of the European Convention for the Protection of Human Rights and Fundamental Freedoms would be in the latter category.
International law is the law in force between or among nation-states that have expressly or tacitly consented to be bound by it. Its primary sources are treaties to which specific countries are parties (binding upon those countries, but not upon other countries) and custom. Customary international law stems from the practice of international entities (primarily national governments) over some period of time that has hardened into a reasonably firm expectation that the practice will govern future conduct by all countries that have not clearly objected to the practice during its gestation.
Kirgis cited a Supreme Court decision from 1900, in which the justices wrote: “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending on it are duly presented for determination.”
While the incorporation of international law into the domestic legal system of the United States was for a long time considered uncontroversial, the attack on the concept by Bush administration officials established a new paradigm in official Washington – that international norms have no place determining the policies and legal practices of the United States.
It was somewhat surprising then the GOP would make “uphold[ing] international law” an official plank of its party platform in 2008, even going so far as to equate international law with “American principles of justice” and stating that respecting these norms was essential for “our moral standing.”
Perhaps the Republicans that year recognized that after nearly a decade of systematically eroding principles of international law, the United States’ credibility was next to zero in the eyes of the world. Or perhaps the party felt threatened by the Obama campaign’s slogan of “hope and change,” which implicitly promised a return to the rule of law in the USA.
Whatever the reason for including the plank four years ago, it is clear that they do not feel beholden to international law anymore.
Not only does the 2012 platform rail against “foreign law,” but it also expresses its absolute opposition to “the adoption or ratification of international treaties that weaken or encroach upon American sovereignty.” These include several popular treaties that the rest of the world has eagerly adopted such as the UN Convention on Women’s Rights and the Convention on the Rights of the Child.
“Under our Constitution,” the 2012 GOP platform states, “treaties become the law of the land.”
So it is all the more important that the Congress—the Senate through its ratifying power and the House through its appropriating power—shall reject agreements whose long-range impact on the American family is ominous or unclear. These include the U.N. Convention on Women’s Rights, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, and the U.N. Arms Trade Treaty as well as the various declarations from the U.N. Conference on Environment and Development.
Further,
To shield members of our Armed Forces and others in service to America from ideological prosecutions overseas, the Republican Party does not accept the jurisdiction of the International Criminal Court. We support statutory protection for U.S. personnel and officials as they act abroad to meet our global security requirements.
It’s interesting that in a political party platform devoted mostly to attacking the incumbent Democratic president on various issues ranging from health care to nuclear strategy, there are no criticisms in the 2012 GOP platform on undue U.S. adherence to international norms. Perhaps this is because a bipartisan consensus has been reached in Washington on matters of international law.
Despite widespread international criticism of U.S. drone warfare, for example, there is only one reference in the platform to drones, which simply criticized alleged leaks regarding secret drone assassinations from the White House “for political purposes.”
“Leaks by senior Administration officials,” the platform reads, regarding “the use of drones against Al Qaeda and its operatives, and the targeting of our enemies—unprecedented leaks that compromised key sources and methods and damaged our national security—served the single purpose of propping up the image of a weak President.”
There is no mention of torture, indefinite detention or the decade-old gulag of Guantanamo Bay in the 2012 Republican platform. The only criticism, in fact, of Obama’s prosecution of the “war on terror” is over the fact that the administration no longer uses that term in describing the endless war in which the U.S. is engaged.
In the White House’s National Security Strategy, laments the GOP, “the phrase ‘global war on terror’ does not appear at all, and has been purposely avoided and changed by his Administration to ‘overseas contingency operations.’”
What a crying shame.
Convention protests highlight U.S. violations of international norms
On issues ranging from U.S. drone warfare to economic human rights to fair elections, protesters against the Republican National Convention this week and the Democratic National Convention the following week are highlighting a host of U.S. violations of international norms. How the police handle the demonstrations will showcase whether the United States respects another important international obligation of the U.S. government – respecting the right to assembly.
Protests related to the RNC in Tampa, Florida, kicked off on Thursday with more than 100 peace activists demonstrating at the local Raytheon plant, stressing the company’s role in manufacturing unmanned aerial drones used by the U.S. to bomb countries such as Pakistan.
The demonstration fell on the same day that Pakistan had summoned U.S. embassy officials to the Foreign Office to lodge protest over U.S. drone strikes in North Waziristan. In a statement, the Foreign Office said: “A senior US diplomat was called to the Ministry of Foreign Affairs and informed that the drone strikes were unlawful, against international law and a violation of Pakistan’s sovereignty. It was emphatically stated that such attacks were unacceptable.”
The following day, the U.S. launched another drone attack in North Waziristan, killing 18. The Bureau of Investigative Journalism, which has been tracking U.S. drone strikes in Pakistan, reports that since 2004, there have been 340 strikes on the country, with 2,557-3,303 casualties. Civilians reported killed range from 473-880, including 175 children.
A common tactic of the CIA’s drone campaign is to target civilians who are helping to rescue the injured or are attending funerals of drone victims, an investigation by the Bureau has revealed. Columnist Glenn Greenwald points out that these secondary attacks have long been considered a hallmark of terrorists according to the U.S. government, with the Department of Homeland Security dubbing the tactic a “double tap” in a 2007 report.
At Thursday’s Raytheon demonstration, protesters chanted, “Raytheon, shame on you; Children die because of you.”
“Raytheon is one of the companies in production of drone software as well as drones, and one of the companies that profits from war and is addicted to war,” protest organizer Medea Benjamin said. “Companies like Raytheon survive because of our tax dollars.”
On the opening day of the RNC, the Poor People’s Economic Human Rights Campaign will march to call for a stop to all home foreclosures, and against “the criminalization of the poor and homeless.”
The Poor People’s Economic Human Rights Campaign is “committed to uniting the poor as the leadership base for a broad movement to abolish poverty everywhere and forever,” according to its website. The organization points out that economic human rights are enshrined in the Universal Declaration of Human Rights, to which the United States is a party. Articles 23, 25, and 26 of the UDHR, the Poor People’s Economic Human Rights Campaign notes,
state our right to such provisions as housing, health care, a living wage job, and education. The founding creed of the United States of America, which asserts our rights to Life, Liberty, and the Pursuit of Happiness, inspired the formulation of these human rights. Our government signed the UDHR in 1948; its full implementation would mean that our country would be living out the true meaning of its creed. This American Dream is possible because our country is the richest and most powerful in the world.
The group will take this message to the RNC on Monday, marching from a “Romneyville” encampment to the Convention site at Tampa Bay Times Forum.
The following day, youth from the Latino community are joining with African American leaders for a large-scale march “to remind candidates and elected officials that their anti-immigrant and racist rhetoric will not dissuade Latinos and African-Americans from flexing their political muscle despite the fraudulent voter suppression laws.”
Organized by the Florida Consumer Action Network, Rainbow/PUSH Coalition and Unidos Now!, the March Against Voter Suppression’s call to action reads,
In Florida, a state with a reputation for egregious voter rights violations, they have been pushing ID requirements they know will disproportionately affect Latinos, African Americans, and youth. Other attempts have included using faulty methods to check citizenship to disenfranchise Latino voters, shortening early voting, and pushing a requirement that volunteers registering people turn in registrations in 48 hours, leading to a high school teacher facing thousands in fines for registering her students. This measure chased the League of Women Voters out of the state, who said that it made voter registration drives impossible since registration workers cannot make the deadline. The League estimated that this would discourage 20% of voter registration, to address voter fraud, which, according to the Brennan Center for Justice, occurs .0004% of the time.
The new restrictions on voting have been challenged in U.S. courts, with a federal three-judge court in Washington blocking a Florida law that had reduced the days for early voting, saying the law violated the 1965 Voting Rights Act in parts of the state.
Many of these new restrictions pertaining to voter registration, inconsistent voter ID requirements and disenfranchisement of ex-prisoners are also likely violations of international commitments on elections, as spelled out in the International Covenant on Civil and Political Rights and the 1990 OSCE Copenhagen Document.
As the ICCPR states,
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors
In the 1990 Copenhagen Document, the United States as an OSCE member country agreed that in order to “ensure that the will of the people serves as the basis of the authority of government,” it will “guarantee universal and equal suffrage to adult citizens.”
Past election assessments by the OSCE, however, have called into question the U.S.’s respect for this commitment.
Following 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.”
Assessing 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.”
In a recent preliminary report on the 2012 elections, the OSCE lamented that in 2011, “Florida and Iowa passed legislation that reversed previous reforms, re-introducing permanent disenfranchisement of prisoners and ex-prisoners.” This disenfranchisement is a clear breach of the U.S. commitment to guarantee universal and equal suffrage to adult citizens.
Tuesday’s march against voter suppression is scheduled to start at Centennial Park in Tampa at 5PM. “Stand up with us as we say no more,” the call to action reads. “No more will we stand by and let the Republican war on voting go by unchecked.”
The following week, the Democrats will hold their convention in Charlotte, North Carolina, which as the second largest concentration of finance capital in the United States, has been dubbed “Wall Street of the South.”
Occupy Charlotte notes that North Carolina is “one of the most anti-union states in the country” and that Charlotte is “home of several corporate criminals, most notably Bank of America, one of the mega-banks most responsible for the 2008 economic meltdown.” It is also the East Coast headquarters of Wells Fargo and the home of Duke Energy, which recently merged with Progress Energy, making Duke the largest energy monopoly in the country.
Public Citizen has criticized organizers of the DNC for allowing its host committee to accept “in-kind” corporate contributions and donations up to $100,000 from wealthy individuals. The Democratic host committee has also formed a separate nonprofit group for soliciting corporate funds for administrative expenses outside the official convention venue.
“Thanks to investigative reporting,” notes Public Citizen, “we know that Bank of America and Duke Energy have opened their coffers to this separate group.”
The influence-peddling at the DNC may be in violation of federal campaign finance laws, Public Citizen says, which could place the U.S. in breach of the UN Convention against Corruption. This Convention calls for measures to be taken to ensure transparency, curb corruption and prevent conflicts of interest among public officials:
Each State Party shall, in accordance with the fundamental principles of its legal system, develop and implement or maintain effective, coordinated anti-corruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability.
Each State Party shall endeavour to establish and promote effective practices aimed at the prevention of corruption.
Dealing specifically with the issue of funding political campaigns, the Convention requires state parties to “consider taking appropriate legislative and administrative measures, consistent with the objectives of this Convention and in accordance with the fundamental principles of its domestic law, to enhance transparency in the funding of candidatures for elected public office and, where applicable, the funding of political parties.”
“Both the Democratic and Republican Parties are controlled by moneyed interests and the 1%, and the Occupy Movement will hold both Parties accountable at the RNC in Tampa in August and at the DNC in Charlotte in September,” states Occupy Charlotte. “We cannot allow this two-party system and its corporate puppeteers to determine our country’s destiny.”
In opposition to this corporate-dominated two party system, Occupy Charlotte and other groups are organizing a wide range of actions for the week of the DNC. The Coalition to March on Wall Street South has called for a “Liberation Fest” for the entire day of Sept. 1, a “March on Wall Street South” for Sept. 2 and a Labor Day parade for Sept. 3.
During the Convention on Sept. 4-6, affinity group and other autonomous actions will take place in the streets of Charlotte.
The Bradley Manning Support Network will also be holding demonstrations in support of prisoner of conscience Pfc. Bradley Manning, both in Charlotte and around the country. In addition to a scheduled protest at the DNC, the group has called for nationwide actions at local Obama campaign offices on Sept. 6.
“Since Army PFC Bradley Manning’s arrest in May 2010 for allegedly sharing the ‘Collateral Murder’ video and other evidence of war crimes and government corruption with the whistle-blower website WikiLeaks,” the support network notes, “progressives and human rights activists have been asking, ‘Why isn’t President Obama stepping in to help Bradley?’”
The group expresses hope that “President Obama can be the vehicle of change on this issue, but first he needs to hear loud and clear from veterans and civilians across the country that the American people want amends for the unlawful torture of Bradley Manning, and believe he should be freed.”
Manning’s treatment has been widely criticized for violating a number of international obligations, including prohibitions against torture.
The cities of Tampa and Charlotte have adopted restrictions on the right to assembly during the conventions, and in the surrounding area of Charlotte, at least nine area counties and municipalities have restricted camping on public property, citing concerns about the Occupy Charlotte movement and potential protests tied to the DNC.
“These radical protest actions create a detriment to the health, safety and welfare of people, and the peace and dignity of the county,” stated Commissioner Jonathan Thomas in defense of new ordinances restricting the right to assembly during the DNC.
Last January, members of the community raised concern over the new ordinances at the Charlotte City Council.
Tampa has also made it clear that it will not tolerate any disruptions of the Republican National Convention (assuming that Hurricane Isaac doesn’t shut it down completely).
County Sheriff David Gee sent out an open letter declaring, “Tactically, we are ready. This is a special time for local civic pride as Tampa Bay gets ready to shine.”
Gee has already emptied the 1,700-bed Orient Road Jail, which is now being converted into a color-coded, closed-circuit “one-stop booking, detention, and bond-issuance center.” There will be “boots on the ground,” their uniforms clearly marked “to provide the appearance of a fine-tuned machine” with “a consistency in garb, response and reaction.”
“To the agitators and anarchists who want only to bring a dark cloud to this event, let me be clear,” Gee said. “Criminal activity and civil disturbances will not be tolerated and enforcement actions will be swift.”
Journalist Rania Khalek has reported that the Tampa City Council recently voted on using some of the $50 million in federal grants secured by the city for the RNC for a “series of police upgrades” that will include an armored vehicle and a high-tech communication system.
Some reports also claim that unmanned aerial drones will be in the sky during the RNC, although federal authorities deny this.
In policing the demonstrations, however, state and local authorities should bear in mind that the United States is a party to international agreements protecting the right to assembly.
As Article 20 of the United Nations Declaration of Human Rights plainly states, “Everyone has the right to freedom of peaceful assembly and association.” And according to the International Covenant on Civil and Political Rights, “the right of peaceful assembly shall be recognized.”
In protest of the undue restrictions on free assembly and the anticipated police crackdowns on the convention protests, Occupy St. Petersburg is organizing a “Death of Democracy March” for Aug. 26. The march will proceed from Mirror Lake Park to Tropicana Feild “where the world’s largest cocktail party is being held at taxpayers expense.”
“Please wear black,” the group requests.
Compliance Campaign 
