To bring U.S. elections in line with international standards, abolish Electoral College
The U.S.’s long national nightmare of Election 2016 is one step closer to coming to an end, with electors gathering across the country today to cast ballots in the Electoral College. This in all likelihood will result in billionaire Donald J. Trump becoming the country’s 45th president, solidifying the descent of the United States into a bona fide oligarchy, defined by Merriam-Webster as “a government by the few … in which a small group exercises control especially for corrupt and selfish purposes.”
It also serves as a stark reminder of the archaic and undemocratic nature of U.S. elections, in which the winner of the popular vote – in this case Hillary Clinton – can be denied the presidency because of an indirect electoral system conceived in the 18th century as a way for slave states to maintain political hegemony. By counting enslaved African Americans as three-fifths of a person, while simultaneously denying them the right to vote, wealthy white landowners in the South were able to maintain disproportionate political control over the federal government for generations.
Now, for the second time in the young 21st century, the popular vote loser is assuming the White House solely due to this antiquated, undemocratic system of choosing presidents. In both cases, the Electoral College has handed the election to a Republican with authoritarian tendencies, meaning that without this controversial electoral method, there would have been no Republican presidents this century, and the world would probably be a very different place.
While it is impossible to predict what Al Gore (who received half a million more votes than George W. Bush) would have done as president, in all likelihood there would have been no Iraq War, no torture regime, no Guantanamo Bay – all of which have been instrumental in facilitating the descent into lawlessness and international chaos that is coming to define this century. It is clear, at least, that the undemocratic nature of U.S. elections, including but not limited to the problematic Electoral College, has real-world implications that reverberate well beyond the borders of the United States.
If the United States hopes to bring its procedure for choosing its leaders in line with international standards for democratic elections, a good place to start would be to abolish the Electoral College. International election observers have noted what an oddity this system is, with the Organization for Security and Cooperation in Europe observing that “the system allows for a candidate to win the popular vote nationwide while falling short of the majority of Electoral College votes.”
Observers from the Organization of American States, in their recent assessment of the November elections, pointed out that
The U.S. electoral system presents several characteristics that make it unique in the hemisphere. One of these aspects is the Electoral College by which the President is elected through an indirect vote consisting of the accumulation of electoral votes tallied state by state, as opposed to the most common electoral practice of direct election through popular vote.
Although there are a dozen or so recognized electoral systems around the world and while the United States is not bound to ensure that its electoral practice follows the accepted procedures of other democracies, there are certain principles to which the U.S. has agreed, which may be violated to varying degrees by the Electoral College system.
The electoral commitments the United States has signed onto in such landmark international agreements as the 1990 OSCE Copenhagen Document and the International Covenant on Civil and Political Rights include such widely accepted international norms of “equal suffrage” which is fundamentally undermined by the Electoral College, in which the popular vote is discounted.
In the ICCPR, for example, the signatories agreed that “Every citizen shall have the right … [t]o 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 OSCE Copenhagen Document, the United States agreed that it would 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.”
This does not happen in the U.S. electoral system. The free expression of opinion of the electors is irrelevant in fact, since nearly three million more Americans chose the Democrat over the Republican, but the Republican is assuming the presidency anyway, due to the arcane and undemocratic Electoral College.
It is long since passed time to abolish this system and move towards direct elections under the principle of one-person-one-vote.
Yes, U.S. elections are rigged but not the way Trump means it
Republican presidential nominee and proto-fascist Donald Trump has been making headlines this week with assertions that the U.S. electoral process is “rigged” – even going so far as to claim that the only way he could possibly lose the battleground state of Pennsylvania to Hillary Clinton is if widespread cheating takes place there.
“The only way we can lose, in my opinion, I really mean this, Pennsylvania, is if cheating goes on. I really believe it,” he said last Friday during a rally in Altoona, Pa. “That’s the way we can lose the state, and we have to call up law enforcement and we have to have the sheriffs and the police chiefs and everybody watching.”
Now, Trump is recruiting so-called “election observers” to help monitor the vote across the country, launching a new page on his campaign’s website calling on supporters to “Help Me Stop Crooked Hillary From Rigging This Election!” Although details of the program are unclear, some are raising concerns about potential Election Day confrontations between voters and overzealous Trump backers – and pointing out the general absurdity of the type of election-rigging that Trump is hinting at.
In a piece for The Guardian, Jimmy Camp, a former Republican operative and a founding member of the Young Republican Federation of California, notes that rigging an election on the national level would require such a degree of coordination as to render it virtually impossible. To effectively swing a presidential election, this is what would the Clinton campaign would have to do, according to Camp:
- Bring on a national voter fraud coordinator. (Perhaps the Clinton Foundation could pay for the program?)
- Hire a statewide voter fraud coordinator that answered to the national voter fraud coordinator in Colorado, Florida, Iowa, North Carolina, Virginia, Ohio and Pennsylvania.
- Enlist a county voter fraud coordinator in each of the targeted states.
Each county coordinator in the targeted state would place ads on Craigslist recruiting supporters who were willing to commit a felony and vote multiple times.
While this sort of widespread coordination is virtually impossible to reach in order to impact a national election in a system as decentralized as the U.S. electoral process – described by one expert as “decentralized to the point of being dysfunctional” – there are in fact very serious concerns about the fairness of elections in the United States. These concerns, however, are likely not what Trump has in mind when he complains about a “rigged process.”
First of all, the most effective – and notorious – method of rigging electoral outcomes in the United States has nothing to do with presidential elections. The highly politicized process of congressional redistricting, which often leads to the controversial practice known as gerrymandering, is how the Republican and Democratic parties ensure that congressional districts are drawn in a way to protect incumbents and thwart genuine competition.
International election observers deployed by the Organization for Security and Co-operation in Europe to monitor U.S. adherence to election-related commitments have long pointed to the prevalence of gerrymandered congressional districts as one of the major hindrances to holding democratic elections in the United States.
The OSCE’s final report on the 2010 midterm elections, for example, noted that due to gerrymandering, “There is a broad perception that a significant number of congressional districts are non-competitive as the outcome of the election could be predicted with a high degree of probability. In these mid-term elections, one senator and 27 candidates for members of the House were elected unopposed.”
The OSCE reiterated a recommendation contained in the final report on the 2006 midterm elections: “With a view to ensuring genuine electoral competition in congressional districts, consideration could be given to introducing procedures for drawing district boundaries that will be based on criteria other than voters’ voting histories and perceived future voting intentions.”
In a publication issued in 2013, the OSCE further criticized the American system of drawing congressional districts. “Electoral constituencies should be drawn in a manner that preserves equality among voters,” noted the OSCE, adding that “the manner in which constituencies are drawn should not circumvent the principle of equal suffrage.”
When it comes to presidential elections, there is also some concern over what could be called election-rigging, particularly by unfairly restricting ballot access and erecting unrealistic barriers to inclusion in televised debates, but this is not something that should concern Trump or Clinton.
While the two big parties are guaranteed ballot access in all 50 states, smaller parties must meet rigorous requirements to even be listed on the ballots, requirements that vary considerably from state to state. Democrats and Republicans also benefit from taxpayer subsidies in the form of public funds to hold party conventions and private primary elections, which in many cases exclude independents from voting.
There is also a massive funding advantage enjoyed by the Democrats and Republicans, who raised over a billion dollars each in the last presidential election. Compare that to just under a million dollars raised by the Green Party in 2012 and 2.5 million raised by the Libertarian Party.
Considering these disparities, the playing field is obviously tilted in this scenario and the deck stacked against upstart parties seeking to challenge the status quo of the two-party system.
Whether or not this should be considered a “rigged election,” this unfair process is likely a violation of the election commitments laid 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;
By hindering the ability of independent parties to compete, the U.S. is failing to live up to these international standards, which is particularly the case considering the lack of media access that “third parties” tend to receive.
To help their electoral chances and to help ensure that American voters are provided genuine choices in Election 2016, the two biggest third parties in the U.S. – the Libertarian Party and the Green Party – sued the Commission on Presidential Debates to permit their inclusion in debates against Hillary Clinton and Donald Trump.
Although the case was dismissed by the United States District Court for the District of Columbia, notably the court did not rule on the merits of the case but rather on the legal standing of the plaintiffs. According to the ruling, issued earlier this month:
The Libertarian and Green Parties and their political candidates sought, and failed to receive, invitations to privately-sponsored presidential debates in 2012. They now seek invitations to this year’s presidential debates, claiming that the rules that bar their participation violate antitrust law. However, because Plaintiffs have no standing and because antitrust laws govern commercial markets and not political activity, those claims fail as a matter of well-established law. Plaintiffs also allege violations of the First Amendment, but those claims must be dismissed because the First Amendment guarantees freedom from government infringement and Defendants here are private parties. Finally, Plaintiffs fail to allege facts that could support a claim for intentional interference with prospective business advantage.
Subsequently, the Green Party has launched a petition to “open the debates.”
The petition to the Commission on Presidential Debates reads, in part:
We, the undersigned, demand that the Presidential debates include all Presidential candidates who have qualified for enough state ballots to be a choice for a majority of voters.
Polls show that 50% of Americans do not identify as either Democrat or Republican. This means that the Presidential debates as currently managed are locking out the diverse voices and views of half of all Americans….
The need for “more voices and choices” can be met by including all candidates who are on the ballots for a majority of voters, a number that has typically ranged from 4 to 6 candidates in total.
Voters have a right to hear directly from their possible choices for the highest office in the land. These choices should reflect the diversity of American political opinion, and not be restricted to two candidates nominated by establishment parties awash in corporate donations and billionaire support.
While so far the Commission on Presidential Debates seems to be sticking to its guns in excluding the Libertarian and Green Parties from the debates, there do seem to be some openings so far this year for improved media coverage of third parties. While in the past, the media has studiously ignored presidential candidates considered outside the mainstream, this year – with a fascist lunatic heading the GOP ticket and a brazenly corrupt influence peddler heading the Democratic Party ticket – there seems to be a bit more cordiality being shown by the media to alternative voices.
CNN, for example, has hosted two “town hall” events featuring the Libertarian and Green presidential nominees, which can be viewed below.
The struggle continues however for a level playing field for all U.S. political parties.
To sign the petition demanding open four-way televised debates between the Democrats, Republicans, Libertarians and Greens – and to help unrig the electoral process in the United States – click here.
See below for an interview with Green Party presidential nominee in which she discusses the actual rigging of elections that takes place in the United States:
Voter-approved election reforms push the U.S. closer to respecting international norms
Two election reforms were adopted by voters in Ohio and Maine this week, pushing the United States substantially closer to respecting international norms on holding free and fair, democratic elections.
In Ohio, a constitutional amendment was adopted by ballot initiative to ban gerrymandering districts for the state legislature – the politically charged and controversial process of drawing legislative districts to virtually guarantee certain electoral outcomes by packing votes in favor one political party over the other.
The amendment approved by voters on Tuesday will create a new, bipartisan commission to draw legislative districts that are compact and do not unfairly favor any party or candidate. It effectively said that district lines for the state legislature will be drawn to be competitive. Unfortunately, however, the reform only applies to elections to the state legislature and will not affect the undemocratic gerrymandering procedure for congressional elections.
The new system, as explained by Ballotpedia, will consist of a seven-member Ohio Redistricting Commission:
The members are the governor, state auditor, secretary of state, one person appointed by the speaker of the House of Representatives, one person appointed by the legislative leader of the largest political party in the House of which the speaker is not a member, one person appointed by the president of the Ohio Senate and one person appointed by the legislative leader of the largest political party in the Senate of which the president is not a member. The new commission requires two members from the minority party or 29 percent of the commission seats, versus a single member under the former system.
To approve a redistricting plan for 10 years, at least two from each major political party have to agree to the plan. If the commission fails to pass a plan by a bipartisan vote, members must pass a plan by a simple majority vote of any four members, but this plan only lasts four years.
All legislative districts are required to be compact and made of “contiguous territory, and the boundary of each district to be a single nonintersecting continuous line.” The amendment forbids district plans from favoring or disfavoring either political party.
The reform, which will take effect in 2021 when the next redistricting occurs, will help ensure that the U.S. begins living up to its international election-related commitments, as spelled out in agreements such as the International Covenant on Civil and Political Rights and the 1990 OSCE Copenhagen Document. But because it does not apply to elections for the United States Congress, its effect will be limited.
Although some campaigners had advocated including congressional redistricting reform in the amendment, proponents backed off after Arizona State Legislature v. Arizona Independent Redistricting Commission was sent to the United States Supreme Court. Some critics believe Speaker of the House John Boehner pressured state lawmakers to drop any proposed changes to the corrupt system of drawing congressional districts.
In advocating that reformers drop their efforts to change congressional redistricting procedures, however, Boehner essentially admitted to the deep corruption embedded in the system of election-rigging known as gerrymandering.
“For 40 years the Democrat Party had the pencil in their hands and for the last 20 years we’ve had the pencil,” he said. “When you’ve got the pencil in your hand, you’re going to use it to the best of your advantage.”
International observers deployed by the OSCE to monitor U.S. adherence to commitments in the Copenhagen Document have long pointed to the prevalence of gerrymandered congressional districts as one of the major hindrances to holding democratic elections in the United States.
The OSCE’s final report on the 2010 midterm elections noted for example that due to gerrymandering, “There is a broad perception that a significant number of congressional districts are non-competitive as the outcome of the election could be predicted with a high degree of probability. In these mid-term elections, one senator and 27 candidates for members of the House were elected unopposed.”
The OSCE reiterated a recommendation contained in the final report on the 2006 midterm elections: “With a view to ensuring genuine electoral competition in congressional districts, consideration could be given to introducing procedures for drawing district boundaries that will be based on criteria other than voters’ voting histories and perceived future voting intentions.”
In a publication issued in 2013, the OSCE further outlined best electoral practices for member states (including the U.S.), including a tacit criticism of the American system of drawing congressional districts. “Electoral constituencies should be drawn in a manner that preserves equality among voters,” noted the OSCE, adding that “the manner in which constituencies are drawn should not circumvent the principle of equal suffrage.”
This would help ensure the U.S. lives up to its obligations in the 1990 OSCE Copenhagen Document, including the following:
To ensure that the will of the people serves as the basis of the authority of government, the participating States will
(7.1) — hold free elections at reasonable intervals, as established by law;
(7.2) — permit all seats in at least one chamber of the national legislature to be freely contested in a popular vote;
(7.3) — guarantee universal and equal suffrage to adult citizens;
Another important reform adopted on Tuesday was a clean elections amendment approved by the voters of Maine, which beefed up their state financing systems as an alternative to big money. Specifically, the initiative strengthened the Maine Clean Elections Act by increasing funding from $2 million to $3 million for the Maine Clean Elections Fund, increasing penalties for violating campaign finance disclosure rules, adjusting political ad disclosure rules, and allowing candidates to qualify for additional funds.
The reform establishes the state of Maine as a U.S. leader in clean elections and transparency in campaign financing, another area that has long been a concern of international observers monitoring U.S. elections. Following last year’s midterm elections, OSCE observers noted:
The ability of independent special interest groups to produce and air campaign-style advertisements without disclosing their sources of funding limited the ability of voters to judge the information that they were presented with. This lack of transparency undermined the ability of legally mandated bodies to provide accountability. Further, the purely legalistic interpretation of what constitutes co-ordination between campaigns and political action committees undermined the legal framework intended to bring transparency to campaign spending.
Although international election-related commitments are somewhat ambiguous on the topic of campaign finance laws, it is widely understood that unregulated private money has the potential for tilting the playing field in favor of a particular party or candidate, thus potentially violating the requirement in the Copenhagen Document for OSCE member states to “provide political parties and organizations with the necessary legal guarantees to enable them to compete with each other on a basis of equal treatment before the law and by the authorities.”
In its 2013 guidelines, the OSCE warned of the impact that unregulated campaign financing can have on electoral systems, noting that “there is the risk of undue influence that can result from excessive or disproportionate contributions by a single contributor or group of contributors.”
Following the 2010 midterms, OSCE election observers noted that “Money played a significant role, creating an uneven playing field between candidates. About three-quarters of the total of upwards four billion dollars was spent on political campaign ads on television and radio. The ads inundated the airwaves, turning many voters off.”
In its statement on the 2012 general elections, the OSCE again stressed “the unprecedented and often negative role played by private campaign financing [which] has a potential to impact negatively on the fairness of the process.”
If more states begin following Maine’s lead, it could have a chance of finally leveling the playing field and improving the fairness of the process.
U.S. midterms fall short of international standards for democratic elections
With the “truly staggering” role of money in campaigns “overshadowing the real issues at stake in the elections,” Tuesday’s midterm elections in the United States failed to meet a number of important international commitments, election observers from the Organization for Security and Cooperation in Europe said in a press release issued Wednesday.
“This country has once again demonstrated that its commitment to democracy is undiminished,” said Isabel Santos, leader of the OSCE observers. “However, the amount of money involved in campaigns has become truly staggering. With certain individuals and groups now spending millions on elections – amounts wildly beyond the capacity of average citizens – there is increasing inequality in the process.”
Although the two main parties’ campaigns were widely covered in the media (which of course completely ignored the campaigns of smaller parties), much of the focus was on campaign funding and polling data rather than substantive policy issues, the observers noted.
“The campaign was active and competitive, but often with negative advertising and mutual accusations lowering the quality of debate and turning voters off. Discussion of the real policy challenges facing the country suffered as a result,” said Santos.
The observers further raised concerns over the lack of transparency in campaign financing:
The ability of independent special interest groups to produce and air campaign-style advertisements without disclosing their sources of funding limited the ability of voters to judge the information that they were presented with. This lack of transparency undermined the ability of legally mandated bodies to provide accountability. Further, the purely legalistic interpretation of what constitutes co-ordination between campaigns and political action committees undermined the legal framework intended to bring transparency to campaign spending.
Another area highlighted by the OSCE pertained to the systematic disenfranchisement of felons and ex-felons in many states around the country, as well as the lack of congressional representation for residents of Washington, DC:
Voting rights of felons and ex-felons are determined by state law and the content of these laws varies broadly. The United States, as all OSCE countries, has committed itself to guaranteeing universal and equal suffrage to all adult citizens. The lack of voting rights for felons, including permanent disenfranchisement in some states, is at odds with this commitment, as is the lack of a voting representative in Congress for citizens in the District of Columbia.
More generally, the OSCE was concerned by the “highly decentralized” legal framework governing elections in the U.S. “While the laws are well understood and the elections are professionally administered, the decentralized system results in varied access for both contestants and voters to the electoral system,” according to the statement.
Judicial rulings and legislative changes in recent years have significantly impacted the framework governing elections, including in the politically sensitive fields of campaign finance, redistricting and identification requirements. The observers expressed concern regarding requirements in some states that voters present photo identification in cases where the authorities do not freely and readily provide such identification.
“Governments have a responsibility to facilitate voting for their population, and I hope that efforts will continue to make access as simple as possible for all American citizens. The requirement in some states that voters must first acquire photo identification can potentially inhibit voting by some, particularly those at lower socio-economic levels,” said Santos.
According to a preliminary analysis by Wendy Weiser of the Brennan Center for Justice, these new practices have likely impacted the results of the elections in several key states. In the North Carolina Senate race, for example, state house speaker Thom Tillis beat Senator Kay Hagen by a margin of 1.7 percent, or about 48,000 votes.
At the same time, Weiser explains,
North Carolina’s voters were, for the first time, voting under one of the harshest new election laws in the country — a law that Tillis helped to craft. Among other changes, the law slashed seven early voting days, eliminated same-day registration, and prohibited voting outside a voter’s home precinct — all forms of voting especially popular among African Americans. While it is too early to assess the impact of the law this year, the Election Protection hotline and other voter protection volunteers reported what appeared to be widespread problems both with voter registrations and with voters being told they were in the wrong precinct yesterday.
Some numbers from recent elections suggest that the magnitude of the problem may not be far from the margin of victory: In the last midterms in 2010, 200,000 voters cast ballots during the early voting days now cut, according to a recent court decision. In 2012, 700,000 voted during those days, including more than a quarter of all African-Americans who voted that year. In 2012, 100,000 North Carolinians, almost one-third of whom were African-American, voted using same-day registration, which was not available this year. And 7,500 voters cast their ballots outside of their home precincts that year.
There were many irregularities reported across the country on and before election day, for example in Georgia, where more than 40,000 voter registrations went missing, most of them representing communities of color, who largely support Democrats.
Speaking on Democracy Now on Tuesday, Georgia state Representative Stacey Abrams described how this may have happened. The state of Georgia, she explained, headed by the secretary of state, requires that every registration form goes through a series of screens, including the Social Security Administration proof of citizenship.
“And the problem is that, according to experts, that proof could be a false negative almost 40 percent of the time, which means that you could have a 20-year-old who’s a college student without an ID, without a driver’s license, who submits his Social Security number and is rejected falsely but is never told that they’re rejected and is never told why,” she said. “And we think that a variety of these problems—clerical errors, screenings—these have all led to more than 40,000 of our applications not being properly processed.”
Ben Jealous, chair of the Southern Election Fund, further explained how Georgia’s secretary of state, Brian Kemp, may have been involved in impacting the failure to process the tens of thousands of voter registration forms.
“What is terrifying about Georgia,” Jealous said,
is you see how a man who could be a good man on most days, Mr. Kemp, can get worried, in a very public way, about the impact of these changes in who’s voting in Georgia and how it could impact his party, and then very publicly appear to be dragging his feet. The allegations that he made are so ridiculous, it’s just like hard to comprehend. Georgia’s law says as soon ink goes onto a voter reg form, it has to be turned in. So if I hand you a form at your door and you write down “Mickey Mouse,” I’ve got to hand it in. When you have a law like that, up to 10 percent of the forms can be impacted. Out of 86,000, he’s been able to find maybe 50. You know, if it was above, say, 8,600, we would be concerned, because it’s their own law that requires you to turn in these problematic forms. They’ve done such a great job, when there could have been 86,000, there’s 50.
Prior to the election, Kemp had publicly fretted about how many new Democratic voters were being registered in his state, further raising concerns about his role in intentionally disenfranchising would-be voters:
After we get through this runoff, you know, the Democrats are working hard. And all these stories about them, you know, registering all these minority voters that are out there and others that are sitting on the sidelines, if they can do that, they can win these elections in November.
The inappropriate roles that partisan secretaries of states and other election administrators play in U.S. elections have long been a concern of OSCE observers. As the OSCE Office for Democratic Institutions and Human Rights put it in its final report on the 2012 U.S. election:
General elections are administered at the state level and there is no federal election management body with oversight responsibilities. On the state level, administrative authority is vested in the respective state secretary or state election board. However, the greater part of election administration is typically delegated to county or lower-level election officials, resulting in a wide variety of electoral practices across the country. …
While some senior election officials are appointed, others are elected. Election administration bodies are often partisan, although 19 states and the District of Columbia provide bipartisan or independent bodies. Very few OSCE/ODIHR LEOM interlocutors raised concerns about the impartiality of county election officials. However, some county-level election supervisors ran on party tickets for re-election in 2012, raising possible conflicts of interest.
In order to avoid these conflicts of interest, the OSCE recommended that “if senior election officials at state and lower levels are elected, the states could consider holding such elections in non-federal election years, to avoid any real or perceived conflicts of interest.”
Further, “there should be a national body with sufficient resources and outreach capacity to provide guidance on election administration and serve as a central clearinghouse to develop good electoral practices. Congress should ensure that such a body has the necessary financial and human resources to fulfil these duties in an effective manner.”
Needless to say, this has not taken place in the United States, which tends to brush off and ignore the recommendations from the international community on how to better meet its obligations on holding democratic elections (as well as all other international norms).
Voting wars, election-rigging in full effect heading into U.S. midterm season
With mere hours before polling stations were scheduled to open in Ohio for early voting in November’s midterm congressional elections, the Supreme Court on Monday blocked voters from beginning to cast their ballots. In a 5-4 party-line vote, the Justices backed a Republican plan to limit early voting in Ohio by granting the state’s request to stay decisions of lower courts that threw out the state’s new plan, passed by the Republican-led legislature.
Last week, the Sixth Circuit Court of Appeals had upheld a lower court’s ruling in in NAACP v. Husted, which stopped new restrictions on early voting in Ohio from taking effect. The case concerned a state law passed earlier this year eliminating Ohio’s limited window for same day registration and early voting, which tens of thousands of voters have taken advantage of in the past two presidential elections.
Evidence presented in the lower court showed that African American, low-income, and homeless voters were more likely to use this voting opportunity. The Sixth Circuit affirmed the district court’s preliminary injunction, based on its conclusion that the NAACP and other plaintiffs had shown likely violations of both the Constitution and the Voting Rights Act.
Ohio’s Republican Attorney General and Secretary of State, however, immediately filed an emergency petition with the United States Supreme Court to block the Circuit Court’s ruling.
Now, the Supreme Court has sided with the Ohio Republicans, who argued that Ohio’s early voting opportunities are more generous than most states’. Further, as Ohio’s Republican Secretary of State Jon Husted argued, the ruling by the lower court “eliminates elected officials’ ability to do what we elected them to do . . . Whether we vote 35 or 28 days, by mail or in person this November, elected officials and not federal judges should be making Ohio law.”
There has been a lenghty legal battle over voting in Ohio since 2004, when long election-day lines meant some Ohio residents missed the chance to vote. Laws passed by Democratic-controlled legislatures have created extensive early voting opportunities, but when Republicans have controlled the legislature, they have sought to roll back those laws.
International election observers from the Organization for Security and Cooperation in Europe have generally welcomed the implementation of early voting in the United States as an important component of addressing the country’s notorious election day capacity problems. OSCE observers noted for example in 2008:
While prior to the elections concern was expressed over the ability to process the expected record turnout, the large amount of early voters likely played an important role in making election day successful and absent of major problems. Still, it is clear that early voting did not remedy all capacity problems, as witnessed by voters having to wait to vote for often many hours in numerous places around the country.
The Ohio case is not the only one being currently decided in the courts. In fact, with midterm elections less than six weeks away, the rules for voting in several states are still unclear. Courts are currently considering challenges to voter ID requirements in Texas and Wisconsin, and whether new restrictions on early voting in North Carolina and Ohio should stay in place. All this uncertainty is making the jobs of election administrators more difficult.
“Voters and elections officials need to know what the rules of the game are going to be several weeks before the election,” says Daniel Tokaji, an election law expert with the Moritz College of Law at Ohio State University.
But right now in several places, they don’t, he says.
As electionlineWeekly reports,
Nowhere does it seem have recent court rulings been more acutely felt than in Wisconsin.
Last week the 7th Circuit Court of Appeals reinstated the state’s voter photo ID law and now elections officials, state agencies and colleges and universities are scrambling to not only inform voters about the law, but make sure voters have the necessary ID.
The state’s Government Accountability Board (GAB) said at a press conference following the ruling that they are taking “extraordinary efforts” to put the ID law into place.
“Implementing the photo voter ID law close to an election will not be easy,” GAB Executive Director Kevin Kennedy said at the press conference. “But the GAB and Wisconsin clerks are up to the challenge.”
The Florida Supreme Court is currently considering a case over the state’s congressional district map, which opponents say has been gerrymandered, or purposefully drawn to give unfair electoral advantage to one side. Last Friday, the court heard arguments over whether documents that played a central role in a redistricting trial which compelled the state legislature to redraw its congressional districts should remain secret or be made public.
As reported by the Florida Herald-Tribune,
In dispute are 41 pages of documents from Pat Bainter, a Gainesville-based Republican consultant who runs Data Targeting. The documents played a central role in Judge Terry Lewis’ decision this year to reject Florida’s congressional redistricting map, ruling that two districts violated the state constitutional ban against partisan line-drawing.
Although Data Targeting was not directly named in the lawsuit that challenged Florida’s 27 congressional districts, the groups that sued contend the documents proved that the consultants worked in concert with Republican legislators to violate the state’s Fair Districts amendments. The Florida Supreme Court is under no time constraint to issue a ruling and it’s unclear when a decision is expected.
All of the cases currently working their way through the courts and causing such confusion for election officials and voters have one thing in common. The root problem is that partisan interests are given free reign over election administration in the United States. From the national level to the state level to the local level, elected representatives and partisan hacks manipulate and game the system to ensure preferred electoral outcomes, in a system generally out of step with international electoral standards.
As the OSCE Office for Democratic Institutions and Human Rights rather mildly put it in its final report on the 2012 U.S. election:
General elections are administered at the state level and there is no federal election management body with oversight responsibilities. On the state level, administrative authority is vested in the respective state secretary or state election board. However, the greater part of election administration is typically delegated to county or lower-level election officials, resulting in a wide variety of electoral practices across the country. …
While some senior election officials are appointed, others are elected. Election administration bodies are often partisan, although 19 states and the District of Columbia provide bipartisan or independent bodies. Very few OSCE/ODIHR LEOM interlocutors raised concerns about the impartiality of county election officials. However, some county-level election supervisors ran on party tickets for re-election in 2012, raising possible conflicts of interest.
In order to avoid these conflicts of interest, the OSCE recommended that “if senior election officials at state and lower levels are elected, the states could consider holding such elections in non-federal election years, to avoid any real or perceived conflicts of interest.”
Further, “there should be a national body with sufficient resources and outreach capacity to provide guidance on election administration and serve as a central clearinghouse to develop good electoral practices. Congress should ensure that such a body has the necessary financial and human resources to fulfil these duties in an effective manner.”
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.
Compliance Campaign 