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International community reiterates calls for Guantanamo’s closure as Congress moves to keep it open

Amnesty International USA activists protest the 10th anniversary of the Guantanamo Bay detention centre, Washington DC, USA, 11 January 2012. - AIUSA

Amnesty International USA activists protest the 10th anniversary of the Guantanamo Bay detention centre, Washington DC, USA, 11 January 2012. – AIUSA

Two major developments took place on Tuesday regarding the ongoing travesty of justice known as Guantanamo Bay. Taken together, the developments once again demonstrate how drastically out of step the United States is with the global community when it comes to human rights and international norms, and in particular how contemptuous the U.S. Congress remains of nearly universal international opinion on the Guantanamo Bay abomination.

On the same day that the U.S. Senate voted 91-3 in favor of a military spending bill that obstructs President Obama’s plans to close the Guantanamo prison camp by prohibiting transfers of detainees, one of Europe’s leading human rights bodies issued a comprehensive report reiterating the international community’s calls to close the detention facility and to either bring the remaining detainees to trial or free them.

The scathing 280-page report issued by the OSCE Office for Democratic Institutions and Human Rights also calls for the full investigation of human rights violations at the prison, including torture, as well as prosecutions of those responsible.

“There is a clear need for full transparency and accountability in addressing the violations of the human rights of detainees, including torture, that have occurred at the Guantanamo detention facility, and as part of the CIA rendition program,” said Omer Fisher, Deputy Head of ODIHR’s Human Rights Department. “Detainees have a right to redress, including access to justice, to compensation, and to medical rehabilitation.”

The report analyses compliance with international human rights standards of the detention and proceedings before U.S. military commissions, demands accountability for human rights violations both at Guantanamo and in the CIA’s illegal rendition and torture program, and specifies the right of victims to claim redress for arbitrary detention and ill-treatment. Regarding the CIA’s rendition and torture program, the report makes clear not only the United States but 27 other OSCE countries are guilty of participating and enabling this gross violation of human rights.

Detention and interrogation practices are examined in some detail. According to the report’s executive summary:

A wide variety of sources, including leaked ICRC reports and official reports have pointed to numerous instances of abuse at Guantánamo under the Bush administration. Interviews with former Guantánamo detainees have provided ODIHR with further information on the severity of abuses inflicted upon them during their detention and interrogations. Practices were reportedly designed to break detainees’ will, cause stress and make them co-operate with and wholly dependent on their interrogators who had total control over their level of isolation, access to comfort items and basic needs such as access to food, drinkable water, sunlight or fresh air. The lack of co-operation with interrogators and non-compliance with constantly changing prison rules were punished, including by the removal of basic items and prolonged isolation. Documented cases corroborated by ODIHR interviews of former detainees indicate the routine use of excessive force against detainees by the Initial Reaction Forces and during the force-feeding of hunger strikers.

Other areas of focus of the report include the use of physical isolation, which “remains the norm for a number of detainees kept in segregated cells with access to two to four hours of recreation per day, alone or with one other detainee.”

The OSCE takes issue with U.S. claims that single-cell confinement does not amount to solitary confinement, noting that “all detainees who spend 22 hours a day in segregated cells are undoubtedly held in solitary confinement.” This isolation “can lead to severe impact on detainees’ health and its effect can be even more pronounced in cases of individuals suffering mental distress from past abuses,” the OSCE points out.

“Solitary confinement combined with the prospect of indefinite detention is even more likely to amount to torture or ill-treatment,” notes the OSCE.

Hunger strikes and force feeding are another area of concern. According to the executive summary:

The reportedly substantial deterioration of confinement conditions during hunger strikes, including the most recent mass hunger strike of 2013 seems to constitute a system of punishment or reward implemented to break the hunger strike and discourage detainees from continuing to protest. Should gathered information be true, such practices would be unjustifiable and would violate a number of international human rights standards, including prison standards and the right of detainees to peacefully protest. It may also violate the prohibition of torture or ill-treatment.

As this report was being published yesterday, the Senate was voting overwhelmingly to thwart Obama’s plans to shutter the Guantanamo facility by maintaining a ban on transferring detainees. The bill adopted Tuesday imposes restrictions on moving any of the 112 remaining detainees to the United States or foreign countries. The measure had passed the house by a vote of 370-58 last week, and although Obama officially opposes the Guantanamo provisions, the White House has indicated that he will sign it into law anyway.

Pentagon spokesman Peter Cook however said that it is premature to say that Congress has blocked the efforts to close Guantanamo. “Let’s wait to see what the plan finally looks like,” he said. “The folks who are crafting that plan have been working very hard on this for months. … This is not going to deter the department from moving forward.”

Even if the plan goes forward, it’s not clear exactly how much impact it would have on ensuring U.S. compliance with international law. Since Obama’s plan would essentially import Guantanamo to the United States while keeping intact the system of indefinite arbitrary detention without charge, the physical closing of the facility in Cuba would largely be symbolic. As a recent letter to the New York Times by Steven W. Hawkins, Executive Director of Amnesty International USA, explained:

The purpose of closing Guantánamo should be to end the human rights violation of indefinite detention without charge — not merely move it to a new location and change Guantanámo’s ZIP code. If the United States does not intend to prosecute a detainee in a fair trial, it should release him. No exceptions.

This call for charging and trying Gitmo detainees or releasing them was echoed by the OSCE report released Tuesday. “Notwithstanding the complexity of the cases before the military commissions, the right to be tried without undue delay has likely been violated in a number of cases,” explained the OSCE. The report goes on:

This right, as recognized under international human rights and humanitarian law and contained in OSCE commitments, applies from the first official charges until the final judgment on appeal. ODIHR is gravely concerned that the US government has intentionally deprived the Guantánamo detainees of this right by excluding the applicability of certain speedy trial rights to cases before the military commissions. The lack of longstanding established procedures and precedent of the military commissions and the hindrances to holding regular hearings due to the remote location of Guantánamo are examples of US government actions that have contributed to the slow path of the proceedings. ODIHR is not aware of particular conduct of the defendants that had led to significant delays. Moreover, lengthy detention, including of 12-13 years in some cases, is likely a violation of the right to liberty and security which applies to pre-trial detention and provides individuals arrested or detained for criminal charges with the right to be tried within a reasonable time or released.

The Director of the OSCE Office for Democratic Institutions and Human Rights, Michael Georg Link, will present the findings of the report Thursday at OSCE headquarters in Vienna. The OSCE is an intergovernmental organization whose membership includes all of the member countries of the European Union, NATO and the Commonwealth of Independent States. The U.S. is one of its charter members, having signed its founding document, the Helsinki Final Act, in 1975.

To join the international grassroots campaign to close Guantanamo, click here.

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Voting wars, election-rigging in full effect heading into U.S. midterm season

Delray-early-voting

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.”

Presidential Commission on Election Administration offers worthwhile ideas for reform (but don’t hold your breath)

The Presidential Commission on Election Administration yesterday presented its final report with a series of recommendations designed to help elections officials improve the voting process in the United States. The report is the result of a six-month study conducted by the bipartisan 10-member commission focused on the election day problems that have plagued voting in recent U.S. elections.

At first glance, it may appear to some that the commission is attempting to limit discussion of U.S. electoral problems to simple and relatively uncontroversial issues such as modernizing voting technology and reducing average wait times for voters. (The commission proposes a maximum nationwide wait time of 30 minutes.)

As Ben Jacobs at the Daily Beast pointed out, “The commission dodged issues normally associated with partisan battles, such as voter ID and the Voting Rights Act.” Avoiding even more contentious matters such as opening up the two-party system to multi-party competition or leveling the playing field by implementing genuine campaign finance reform, the commission’s key recommendations call for:

  • modernizing the registration process through continued expansion of online voter registration and expanded state collaboration in improving the accuracy of voter lists;
  • improving access to the polls through expansion of the period for voting before the traditional Election Day, and through the selection of suitable, well-equipped polling place facilities, such as schools;
  • introducing state-of-the-art techniques to assure efficient management of polling places; and,
  • reforming the standard-setting and certification process for new voting technology to address soon-to-be antiquated voting machines and to encourage innovation and the adoption of widely available off-the-shelf technologies.

Delving a little deeper into the report, there appear to be several worthwhile recommendations that are surprisingly frank in their criticism of the highly flawed U.S. electoral system. Some of the document’s most useful recommendations arguably pertain to improving the general professionalism of election administration in the United States.

The report explains the unique nature of the U.S. electoral system in relation to the rest of the world, with most other electoral systems having central election commissions that govern national elections.

“Other countries exhibit one or another of these features in their election systems, but none have the particular combination that characterizes administration in the United States,” the report explains. “Decentralization and reliance on volunteers ensure that the quality of administration varies by jurisdiction and even by polling place. The involvement of officials with partisan affiliations means that the rules or their interpretations will be subject to charges of partisanship depending on who stands to win from the officials’ decisions.”

One overriding problem that the commission identified was the partisan nature of election administration. Because all election officials (whether elected or appointed) are selected on a partisan basis, “those who run our elections are subjected to competing pressures from partisans and political constituencies, on the one hand, and their obligation to the voting public as a whole, on the other,” the commission noted.

Because the selection of election officials on a partisan basis can risk public confidence in the quality and impartiality of administration, the commission recommended that the responsible agency in every state should have on staff individuals chosen solely on the basis of experience and expertise.

In a section of the report on “Incorporation of Recommendations Made by Other Commissions and Organizations,” there is curiously no mention of recommendations made by the Organization for Security and Cooperation in Europe, which has been observing U.S. elections since 2002, or the long-outstanding recommendations of the 2005 Commission on Federal Election Reform, the so-called Carter-Baker Commission.

In its preliminary post-election statement issued in November 2012, the OSCE reminded U.S. authorities of the 87 recommendations of the Carter-Baker Commission, most of which have never been implemented. One of that commission’s most important recommendations 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.

There are several other important issues that are conspicuously absent from the report released yesterday by the Presidential Commission on Election Administration, some of which have been repeatedly highlighted as problematic by international election observers of the OSCE.

There is no mention in the report, for example, of the election-rigging practice known as gerrymandering, which enabled Republicans to keep control of the House of Representatives despite losing the popular vote nationwide by 1.4 million votes in 2012. 

In a recent publication outlining best electoral practices for OSCE member states (including the U.S.), the OSCE Office for Democratic Institutions and Human Rights tacitly criticized the American system of drawing congressional districts. “Electoral constituencies should be drawn in a manner that preserves equality among voters,” noted 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.

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.

The OSCE has repeatedly expressed serious concerns over the disproportionate impact of felon disenfranchisement in the United States.

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. “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,” explained the OSCE.

Despite some of these notable ommissions, the reaction from election reform advocates to the report released yesterday seems to be generally positive.

The League of Women Voters President Elisabeth MacNamara said,

We are pleased to see that the bipartisan Commission was able to roll up their sleeves and get to work on some of the endemic troubles plaguing our nation’s polling places. PCEA’s prescription for what to do about lack of resources, inadequate compliance with federal laws, the need for professionalization of the election workforce, and creating a benchmark of no one waiting to vote longer than 30 minutes, are badly needed fixes for election administrators and voters.

Common Cause’s Karen Hobert Flynn noted that

While some of the commission’s recommendations require legislative action and appropriations, state and local election officials should act on others on their own initiative. For example, voting locations often can be better organized, and sample ballots printed more clearly and distributed earlier without added costs. All that’s needed is the will to act.

But unfortunately, as the commission itself points out, due to “the complexity and variation in local election administration … no set of practices can be considered ‘best’ for every jurisdiction.”

Some reforms that work well in certain contexts will be unnecessary or fail in others, noted the commission. In other words, don’t hold your breath for any meaningful and comprehensive nationwide election reform.

U.S. obligations on elections undermined by Supreme Court’s decision on the Voting Rights Act

Today’s Supreme Court decision striking down key sections of the 1965 Voting Rights Act will likely result in restrictive voter registration laws, racial gerrymandering and stringent identification requirements that could push the U.S. further out of step with international standards for democratic elections.

Judging by recent trends, especially those seen in the last election cycle, it’s almost a guarantee that these voter suppression tactics will become more common throughout the country, and without the VRA’s important protections for minority voters, courts will not have jurisdiction to strike down these unfair laws.

Scotusblog.com’s Lyle Denniston explained the Supreme Court’s decision in a blog post today:

** Section 4, which lays out the formula that will automatically bring a state or local government within the coverage of the law’s special obligations for states with a history of racial bias, was found unconstitutional as a violation of the Constitution’s guarantee of equality among the states.  The Court said the formula, based on data more than forty years old, was seriously out of date and did not reflect “current conditions” anywhere in the country.    “Congress may draft another formula based on current conditions,” the Court said.

** Section 5, which requires state and local governments selected under Section 4 to get official clearance in Washington before they may implement any change in their voting laws or procedures, however minor, was left on the books, but with a somewhat ominous statement that the Court simply was issuing “no holding” on that provision.  That provision is now scheduled to expire in 2031, but it can only apply to states or local governments that are specifically drawn in under it.

** Section 2, which the Court said was affected “in no way” by the decision, applies permanently to every state and local government across the nation, forbidding discrimination in voting, but the government or a private challenger must prove that in each case, one at a time.

While the opinion did not judge Section 5 itself unconstitutional, Roberts’ opinion in condemning the obligations on covered jurisdictions called into question the provision’s validity. As Denniston explained, it appeared that after extensively reciting constitutional grievances about the law’s main provisions, Chief Justice John Roberts — in order to hold together all of the five-Justice majority — narrowed the final focus to the validity of the Section 4 coverage formula.

“This is a devastating blow to those of us that need that protection, especially given the voter suppression schemes that we saw in 2012,” said civil rights activist Rev. Al Sharpton following the ruling.

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

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

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

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

Considering how important the law has proven in recent years, Spencer Overton, a Professor of Law at The George Washington University Law School and a Senior Fellow at Demos, wrote today that the Supreme Court’s decision was “a setback for democracy.”

Unfortunately, today’s decision gives politicians even more power to unfairly manipulate election rules and target Americans based on how they look or talk.  There is overwhelming evidence that unfair voting rules remain a very real threat—too many political operatives currently manipulate rules to diminish the voices of growing minority communities.

Due to today’s decision, protecting voting rights now will be more expensive and slower.  We will miss a lot of under-the-radar manipulation.  It also will be tougher to stop unfair rules before they are actually used in elections and harm voters.   The biggest problem will be the under-the-radar manipulation of election rules for local offices that are often non-partisan and escape national attention—over 85% of all election rule changes rejected as unfair under Section 5 were at the local level.

In its final report on the 2012 U.S. election, released on Feb. 13, the OSCE Office for Democratic Institutions and Human Rights explained the history and purpose of the Voting Rights Act.

The 1965 Voting Rights Act (VRA) is the earliest piece of federal electoral legislation. It aims to protect the rights of racial and linguistic minorities by prohibiting voting practices and procedures that have either discriminatory intent or impact. Section 5 of the VRA requires certain jurisdictions with a history of discrimination to obtain administrative or judicial pre-clearance of changes to their electoral laws and regulations from the Department of Justice or the federal district court in the District of Columbia. In such cases, the burden of proof lies with the jurisdiction that introduces legislation. The VRA foresees a mechanism for jurisdictions to obtain termination of the preclearance requirement.

The OSCE further noted that the VRA was instrumental last year in striking down a number of state laws that would have drastically curtailed the right to vote:

The majority of electoral disputes in this election cycle pertained to new legislation regarding voter identification, early voting, redistricting, and provisional ballots. Texas and South Carolina voter identification laws were denied both administrative and judicial pre-clearance under the VRA. While Texas law was found by a federal court to impose strict burdens on racial minorities, the South Carolina law was upheld but its enforcement was delayed until 2013 due to the short timeframe before the general elections. Outside of the VRA coverage, lawsuits were filed against a voter identification law in Pennsylvania, where it was decided that the law could not be implemented in the short time before the elections, and Wisconsin, where a decision is expected in 2013. Courts reinstated early voting that was curtailed by state laws in Ohio and Florida.

Now, with the key provisions of the VRA struck down, it will be far more difficult to ensure that various schemes to suppress the vote are defeated. As the Leadership Conference on Civil Rights put it,

The Constitution is clear that Congress has complete authority to ensure that no voter is denied the right to vote on account of race. That authority is vital to protecting our democracy. While we have made many strides as a country in extending the franchise to all, the weight of the evidence is clear: discrimination in voting remains a troubling and persistent practice in too many places.

The Voting Rights Act is the most successful and important piece of civil rights legislation of the 20th Century – and its work is still far from over.  Jurisdictions across the country, large and small, continue to purge voter rolls, move polling places, and otherwise dilute, pack, suppress or gerrymander away the rights of voters.  Section 5 of the Voting Rights Act has been the single most potent deterrent our nation had to protect them, and it must continue to perform that important function.

It could also be argued that by enabling voter suppression practices that have become so common in recent years, the Supreme Court is pushing the U.S. further out of compliance with its international obligations on fair elections. As a party to the 1990 OSCE Copenhagen Document, the United States has agreed to certain provisions in carrying out democratic elections, 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;

In its assessments of U.S. elections based on its extensive election observation activities, the OSCE has consistently called into question the U.S. commitment to paragraph 7.3 of the Copenhagen Document, particularly in regards to the disenfranchisement of convicted felons and the residents of the District of Columbia.

As the OSCE noted in its final report on the 2012 election,

Consideration should be given to providing full representation rights in Congress for citizens resident in the District of Columbia and US territories, in line with paragraphs 7.3 and 24 of the 1990 OSCE Copenhagen Document.

Further,

Restrictions of voting rights for prisoners and ex-prisoners should be reviewed to ensure that any limitation is proportionate to the crime committed and clearly outlined in the law. Federal legislation could be considered to provide consistency in restrictions to federal voting rights. Authorities should take effective and timely measures to facilitate the restoration of voting rights after a prison term has been served.

Criticizing the cumbersome voting registration system in the United States, the OSCE recommended that,

Authorities should review existing measures to register voters so as to ensure that all persons entitled to vote are able to exercise that right. States should consider further efforts to facilitate the registration of voters, including through civic education programmes. States could consider possibilities for automatic registration based on existing state and federal databases, thereby removing the need for citizens to proactively register.

With the new restrictions on voting rights that will surely emerge now that the Supreme Court has struck down key provisions of the Voting Rights Act, the U.S. lack of compliance with its international obligations will likely only get worse.

To join the campaign to restore the Voting Rights Act, click here.

International criticism of war on terror persists despite Obama’s assurances

war-on-terrorOver the past week, international bodies such as the European Parliament and the UN Human Rights Committee have raised grave concerns over continuing U.S. lawlessness in its prosecution of the war on terror, and in particular the travesty of justice known as Guantanamo Bay.

In a resolution adopted last Thursday, the day of President Obama’s big speech attempting to reassure the American public and the international community about drones and Gitmo, the European Parliament noted concern for the well-being of the hunger striking prisoners at Guantanamo and especially those being force-fed. The EP expressed anxiety in particular over the mental and physical condition of the prisoners, “a number of whom have been subjected to torture or inhuman and degrading treatment.”

The European Parliament reiterated its call on the US authorities “to close the Guantánamo Bay detention camp immediately and prohibit the use of torture and ill-treatment in all circumstances” and called “for those inmates who have been cleared for release to be released, transferred to their home countries or other countries for resettlement, and for the remaining detainees to be charged in a civil court with fair trial standards.”

The body also criticized the military commissions that have been set up to try some Guantanamo detainees, as these commissions “do not meet international fair trial standards.”

It further pointed out that the continuing detention without charge or trial of these 166 men is contrary to basic principles of justice.  Arbitrary detention “is in clear breach of international law and that this severely undermines the United States’ stance as an upholder of human rights,” noted the resolution.

As British journalist Andy Worthington explained,

As far as current action is concerned, involving European countries directly, the European Parliament resolution is noteworthy for its call for the coordination of “a joint EU Member States’ initiative” not only “to urge the US President to act” on revisiting his failed promise to close Guantánamo, but also to offer to “receive additional Guantánamo inmates on European soil, especially the approximately dozen men cleared for release who cannot return to their home countries.”

Testifying at the UN Human Rights Committee today, High Commissioner on Human Rights Navi Pillay warned that U.S. counter-terror policies are violating human rights and undermining international law. She criticized in particular Obama’s failure to close Guantanamo and admonished European nations for participating in the forced disappearance program dubbed “extraordinary rendition” by the United States.

“The United States’ failure to shut down the Guantanamo detention centre has been an example of the struggle against terrorism failing to uphold human rights, among them the right to a fair trial,” Pillay said.

She continued:

The continuing indefinite detention of many of these individuals amounts to arbitrary detention, in breach of international law, and the injustice embodied in this detention centre has become an ideal recruitment tool for terrorists. I have repeatedly urged the Government of the United States of America to close Guantanamo Bay in compliance with its obligations under international human rights law. I therefore acknowledge President Obama’s statement last Thursday outlining practical steps towards closing the detention facility, such as the lifting of the moratorium on transferring relevant detainees to Yemen. I encourage the United States to ensure that all such measures are carried out in compliance with its obligations under international human rights law. In the meantime, so long as Guantanamo remains open, the authorities must make every effort to ensure full respect for the human rights of detainees, including those who choose to go on hunger strike.

I am dismayed by the continuing failure of many European States to undertake public and independent investigations of past involvement in the U.S. renditions programme, under which terrorist suspects were captured and delivered to interrogation centres without regard for due process. Some of them still languish in Guantanamo. Last September, the European Parliament denounced obstacles that have been encountered by a number of parliamentary and judicial inquiries into this topic. Credible and independent investigations are a vital first step towards accountability, and I call on States to make this a priority.

Last July, the OSCE Parliamentary Assembly – a 323-member organization comprising lawmakers from Europe, North America and Central Asia – also adopted a resolution condemning the Obama administration’s blocking of European investigations into extraordinary rendition.

Supporting the criminal investigation carried out by Polish authorities into the rendition program and welcoming attempts by British parliamentarians to ascertain the level of the United Kingdom’s involvement, the resolution “insists that the United States Government co-operates with European investigations” and “calls upon the United States to release any pertinent information to appropriate investigators.”

Needless to say, since then, the U.S. has not adequately dealt with the rendition question. A 213-page report published earlier this year by the Open Society Justice Initiative documented how the CIA conspired with dozens of governments around the world to build a secret extraordinary rendition and detention program that spanned the globe and that the United States has failed to conduct effective investigations into these policies.

To date, the U.S. and the vast majority of the other 54 governments involved have refused to acknowledge their participation, much less compensate the victims, or hold accountable those most responsible for the program and its abuses, the Open Society concluded.

In its report on the U.S. human rights situation released last week, Amnesty International criticized the lack of accountability for deaths that have occurred in secret detention by the United States.

“The absence of accountability for crimes under international law committed under the administration of President George W. Bush in relation to the CIA’s programme of secret detention was further entrenched,” lamented Amnesty, noting in particular the lack of investigations into the deaths of two men who were believed to be tortured to death in U.S. custody.

Further, Amnesty International expressed concern over the use of drone strikes by the U.S. which amount to a policy of “extrajudicial executions in violation of international human rights law.”

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.

twopartysystem

Resolution unanimously adopted on extraordinary rendition

Terror suspects being transferred on U.S. military plane.

An international body last week unanimously adopted a resolution condemning U.S. secrecy regarding the CIA’s extraordinary program – secrecy that is effectively stonewalling a number of European investigations into the program of secret arrests and torture of terror suspects.

The OSCE Parliamentary Assembly – a 320-member organization comprising lawmakers from Europe, North America and Central Asia – adopted the resolution in plenary session on July 9.

Supporting the criminal investigation carried out by Polish authorities into the rendition program and welcoming attempts by British parliamentarians to ascertain the level of the United Kingdom’s involvement, the resolution “insists that the United States Government co-operates with European investigations” and “calls upon the United States to release any pertinent information to appropriate investigators.”

In introducing the resolution on July 6, British parliamentarian Tony Lloyd recalled that when President Obama was inaugurated in 2009, one of his first acts was to issue executive orders prohibiting rendition and torture. However, he said, there are “strong evidential trails that suggest members of the OSCE family were involved in this practice of unlawful transfer of prisoners” throughout Europe, the Middle East and Afghanistan. He pointed to cases of prisoners being unlawfully detained by the CIA in Italy and the United Kingdom.

In the UK, he said, an official inquiry came to a “premature end” despite the fact that the practice of extraordinary rendition is “clearly illegal,” in violation of Article 3 of the Convention against Torture, which has been adopted by every member of the OSCE. He reminded OSCE parliamentarians that there were 1,245 CIA flights from European territory to countries where suspects faced torture.

In March, Polish Prime Minister Donald Tusk confirmed that his country’s former spy chief, Zbigniew Siemiątkowski, is facing criminal charges in connection with a probe by state prosecutors into the Polish role in the CIA’s rendition and secret prison program.

The future of the Polish investigation is in doubt, however, with U.S. authorities refusing to turn over relevant documents to the prosecution, reports the Polish newspaper Gazeta Wyborcza.

In April, U.S. intelligence agencies including the CIA and the FBI won a court ruling allowing them to continue withholding evidence from British MPs about UK involvement in the rendition.

In reaction to this court ruling, Lloyd, who co-chairs the UK All-Party Parliamentary Group on Extraordinary Rendition, said that “It’s an abuse of the spirit of freedom of information.” He claimed that the U.S. agencies were trying to avoid official embarrassment on both sides of the Atlantic by using a narrow legal exemption to prevent the disclosure of critical papers.

“This is still an ongoing issue,” Lloyd said in introducing the resolution last week. “This story of extraordinary rendition is not finished.” He pointed out that “it is clear that the United States was the author of these practices,” but noted that “it was the United States acting in concert with other members of the OSCE.”

It is therefore “necessary to keep up the political pressure for proper answers,” he said. “We need to know the truth of what took place. We need to give a strong signal that this type of activity is not something that has any role to play in the fight against terrorism.”

Toward this end, the resolution introduced by Lloyd reminds OSCE member states of their “binding obligations under international law to not only refrain from torture, or inhuman, cruel, humiliating, and degrading treatment; but to also investigate allegations of torture.”

It further calls on all OSCE members to investigate allegations that their territory has been used to assist CIA-chartered flights secretly transporting detainees to countries where they may face torture or other ill-treatment.

Following Lloyd’s introduction, U.S. Congressman Dennis Cardoza (D-Calif.) took the floor largely in support of the resolution, stating that “No country should evade a discussion of its own domestic issues.” He said that the issues of rendition and torture “remain controversial in the United States” and welcomed Lloyd’s attempt to focus attention on the matter.

Florida voter suppression flouting federal law, international obligations

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;

International Covenant on Civil and Political Rights, Article 25

The state of Florida, epicenter of the disputed 2000 presidential election, is once again placing the spotlight on long-standing electoral problems in the United States. A string of statutes and rules adopted recently by the state appear designed to limit the ability of voters to participate in the November 2012 general elections, targeting, in particular, African Americans and Latinos.

The state’s voter suppression activities are leading to a slew of legal challenges claiming that the changes violate the Constitution and federal law, and are also becoming a concern to the international community. As a state party to the International Covenant on Civil and Political Rights and signatory to the 1990 OSCE Copenhagen Document, the U.S. has agreed to certain commitments on holding free and fair elections, commitments that are being flouted by efforts to suppress the vote in Florida and elsewhere.

International election observers from the Organization for Security and Cooperation in Europe, which has been monitoring elections in the U.S. since the disputed election of 2000, conducted an electoral “needs assessment mission” to the United States in April and issued a critical preliminary report last month.

On the domestic front, voter advocacy groups sued the state last week, claiming that its recent voter purge targeting noncitizens unfairly discriminates against minorities. While 14 percent of voters in Florida are Hispanic, the complaint points out, 61 percent of the names on the state’s purge list are Hispanic.

The Miami Herald reports that “the lawsuit, filed in U.S. District Court in Miami, adds to a growing volume of litigation over the state’s decision to target more than 2,600 registered voters whose citizenship was questioned in a driver license database.”

The U.S. Justice Department sued the state last month to block the voter purge, claiming it violates a federal law that prohibits the systematic removal of voters from the rolls within 90 days of a federal election. The ACLU and the Lawyers Committee for Civil Rights have also sued to block removal efforts in five counties under federal oversight in electoral matters.

According to the Herald:

The latest lawsuit, filed on behalf of two Hispanic women in Miami-Dade County, charges that the purge violates the Voting Rights Act of 1965, which prohibits any action that denies or abridges the voting rights of racial or ethnic minorities. It also echoes the federal government’s argument that the National Voter Registration Act prohibits any systematic removal of ineligible voters less than 90 days from the date of a federal election, which in Florida is Aug. 14.

“What we know so far is this: It’s devastating for the Latino and black communities in Florida,” said Juan Cartagena, president and general counsel to Latino Justice, a New York group that joined in the lawsuit. “You have a clear racial impact.”

The lawsuits over the controversial voter purge coincide with other legal challenges to voter suppression efforts in Florida, including new voter ID requirements and restrictions on voter registration efforts. Late last month, a federal judge in Florida blocked parts of a state law that placed “harsh and impractical” restrictions on civic groups that help new voters register to vote.

The Florida rules restricting voter registration “impose a harsh and impractical 48-hour deadline for an organization to deliver applications to a voter registration office and effectively prohibit an organization from mailing,” the judge said. “And the statute and rule impose burdensome record-keeping and reporting requirements that serve little if any purpose, thus rendering them unconstitutional.”

Most recently, the Department of Justice has challenged newly adopted rules in Florida that cut back on early voting hours, arguing that the restrictions unfairly burden the state’s minorities.

On Thursday, U.S. Justice Department lawyers argued before a three-judge District Court panel in Washington that the changes in early voting hours violate Section 5 of the 1965 Voting Rights Act, which requires that states with a history of discrimination obtain federal approval before making changes to electoral rules.

Section 5 also mandates that courts review the law for retrogression, anything that would leave minority groups worse off than they were before the law’s enactment.

During the 2008 election, about 55 percent of black voters cast their ballots during the early voting period that would be reduced under the law, according to data from the National Association for the Advancement of Colored People.

In 2008, the OSCE noted 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.”

These positive developments, however, are being rolled back across the country this year. In addition to Florida, state legislatures adopted legislation to restrict early voting in Georgia, Ohio, Tennessee, and West Virginia.

Another positive development that OSCE observers have noted in the past – but being reversed this year – is the loosening of restrictions on the voting rights of ex-prisoners. In line with OSCE recommendations, in 2007, Florida Governor Charlie Crist pushed through new procedures to speed up the process for most felons (excluding murderers and sex offenders) seeking a restoration of voting rights.

In its final report on the 2010 midterm elections, the OSCE said that “recent examples of loosening of restrictions” on the voting rights of former prisoners “are a welcome development.”

In its recent preliminary report on the 2012 elections, however, the OSCE lamented that in 2011, “Florida and Iowa passed legislation that reversed previous reforms, re-introducing permanent disenfranchisement of prisoners and ex-prisoners.”

Florida also joins Texas in adopting laws making voter registration more difficult. The two states have a long history of restricting voter registration drives, although neither has reported cases of registration fraud in the past election cycle.

The OSCE report observes that in the U.S., “voter registration and identification are politically polarized, split on the issue of enfranchisement versus integrity of the vote.”

Noting the Justice Department’s role in monitoring state implementation of federal election law, the OSCE pointed out that the DoJ is actively involved in several cases, including on redistricting and voter identification.

“Contrary to good electoral practice,” however, the final decisions on some changes to state electoral law “may only be reached in the weeks shortly before election day, which may affect electoral participants’ understanding of provisions or their ability to fulfil their roles effectively.”

In other words, by the time some of these legal challenges are decided, it may be too late and thousands of voters could be unfairly disenfranchised.

U.S. backsliding on commitments for democratic elections

Since the United States began submitting to international election observation following the disputed presidential contest of 2000, certain criticisms have reemerged year after year. While some progress was noted in 2008 and 2010, changes to the electoral framework since then have revealed a decided indifference of U.S. authorities in meeting international obligations on democratic elections.

The election observation missions of the Organization for Security and Cooperation in Europe – a 56-nation body to which the U.S. belongs, which is mandated with determining members’ adherence to election commitments laid out in the 1990 OSCE Copenhagen Document – have repeatedly pointed to systemic problems in the U.S. electoral framework.

In 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.”

Following 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.”

Redistricting and Gerrymandering

The OSCE has also noted the fact that “only a small proportion of the elections” for the 435 Congressional districts are actually competitive. “This was attributed largely to the way in which Congressional district boundaries are drawn so as to favour the incumbent party,” the OSCE observed.

The OSCE has recommended that “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.”

Despite this recommendation, U.S. election authorities have continued the practice of gerrymandering, or drawing district boundaries with a high degree of predictability as to the outcome of the election. This questionable practice has become particularly pronounced in the current election cycle.

Because of population changes, 18 states had changes in their number of seats: Texas and Florida gained four and two seats, respectively, while Ohio and New York both lost two. Six states gained a single seat while eight lost one. These changes affect the number of votes each state will cast in the Electoral College for the 2012 presidential election.

The 2010 census showed an enormous population increase in Texas, in particular, with over four million new residents, the vast majority of whom are Latinos.  That growth required the State of Texas to redraw its electoral districts for the U.S. Congress, the State Senate, and the State House of Representatives, in order to comply with the Constitution’s one-person, one-vote rule.

Texas is a “covered jurisdiction” under Section 5 of the Voting Rights Act of 1965, which requires states with a history of discrimination to submit any changes they make to their election procedures to the U.S. Department of Justice or the D.C. Circuit Court for preclearance. Preclearance is necessary to demonstrate that the proposed changes “neither [have] the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.” In July 2011, the Texas legislature submitted new electoral maps to the D.C. Circuit Court for review.

The U.S. Justice Department voiced opposition to preclearance, alleging the Texas legislative plan unfairly discriminated against minority voters by giving no “electoral opportunity” for Latinos to be elected.

The most heated fight surrounds Dallas and Fort Worth, where Republicans drew congressional districts that are largely rural, except for small portions that include urban neighborhoods where minorities live. Minority groups complain that despite an 83.7 percent growth in the Latino population and a 34.1 percent increase in African Americans in Dallas County, the Texas legislature did not create a single new congressional district where minorities could realistically succeed.

While the pre-clearance process was pending in Washington, D.C., various plaintiffs brought suit in Texas, claiming that the Texas maps violate the U.S. Constitution and Section 5 of the Voting Rights Act. Noting that the D.C. Court could not finish its work in time for Texas to conduct its 2012 primary elections, the U.S. District Court for the Western District of Texas, based in San Antonio, produced its own interim plans. However, the court produced maps which had little bearing with those proposed by Texas’ Republican-controlled legislature.

To decide the validity of the San Antonio maps, Texas filed a motion with the U.S. Supreme Court, which argued in January 2012 that the U.S. District Court should not have ignored the state legislature’s plans when drafting the interim map. On February 28, the federal district court submitted new maps ensuring that both the Republican and the Democratic Party receive two of the four new congressional seats each.

The League of United Latin American Citizens, the NAACP, and three other groups criticized the new maps, arguing they don’t do enough to guarantee minority voters have equal representation. The maps, they explain, reflect the same “intentional discrimination” as the Texas legislature’s maps and either split up minority groups so that their candidates can’t win, or pack minorities into only a handful of districts.

The minority groups have now proceeded to ask the D.C. Circuit Court to expedite its ruling on whether the Texas Legislature’s original maps violate the federal Voting Rights Act. Since national party rules require primary elections be held by June 26, failure to rule in time would mean that this year’s Texas elections would be held under the temporary maps proposed by the San Antonio court.

Minority representatives hope that a favorable decision from the D.C. Circuit Court would compel the federal district court to alter districts ruled to be in violation. In such a case, the Texas primaries would be pushed back for a third time. However, the San Antonio court is not bound to make changes to the 2012 maps based on what is handed down from the three-judge panel in Washington, DC. In that scenario, minority groups would likely appeal to the U.S. Supreme Court.

Election administration

In addition to the redistricting controversies, another contentious issue emerging in the current election is regarding the U.S.’s problematic election administration and voting registration system.

In 2008 and 2010, the OSCE noted that the decentralized nature of the U.S. electoral system creates vulnerabilities “in particular with regards to the integrity and complexity of voter registration, voter identification and electronic voting machines.” The OSCE observed that “the possibilities to verify the correctness of the voter register and to crosscheck it with neighboring states, in order to avoid double registrations or multiple voting, are limited and not widely used.”

With these international concerns unaddressed by U.S. election authorities, the systemic problems of the decentralized electoral framework are becoming more pronounced.

In February 2012, research commissioned by the Pew Center on the States showed that the U.S. voter registration system is plagued with errors and inefficiencies, which “undermine voter confidence and fuel partisan disputes over the integrity of … elections.”

The Pew Center pointed out that “the paper-based processes of most registration systems present several opportunities for errors.” In particular, the system is unable to keep up with voters as they move or die. In turn, this can lead to problems with the registration rolls, “including the perception that they lack integrity or could be susceptible to fraud.”

The research reveals that:

  • approximately 24 million – one in every eight – active voter registrations in the U.S. are no longer valid or are significantly inaccurate;
  • more than 1.8 million deceased individuals are still listed as active voters;
  • approximately 2.75 million people have active registrations in more than one state.

Americans are generally unaware of these registration problems. According to the study, one in four voters falsely assumes that election officials update registrations automatically. Additionally, more than two million provisional ballots were cast in 2008, requiring election officials to verify each voter’s eligibility. Almost half of those were rejected because the voter was not on the registration rolls.

Further, at least 51 million people – nearly one in four eligible citizens – are not registered to vote.

New restrictions on voting

In the past, one of the few positive developments in U.S. elections that international observers have noted was the effort to increase voter participation by same-day registration initiatives and the introduction of early voting in 2008 and 2010.

In 2008, the OSCE noted 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 a particularly positive step, 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.”

However, these positive efforts to increase voter enfranchisement are being rolled back in the current election cycle.

In 2011, state legislatures across the country put forward legislation restricting early voting, citing financial and administrative burdens and sometimes the risk of fraud. Laws restricting early voting were signed into law in Florida, Georgia, Ohio, Tennessee, and West Virginia. Bills are pending final approval in North Carolina, Georgia, and New Jersey.

New requirements have also been instated this year to make it more challenging for eligible citizens to ensure that they are registered to vote on Election Day.

Since the previous election cycle, a number of state legislatures have pushed legislation to regulate and restrict community-based voter registration drives. Bills placing new restrictions on voter registration groups have been proposed in seven states: California, Florida, Illinois, Mississippi, New Mexico, North Carolina, and Texas.

The bills have been signed into law in Florida and Texas, two states with a long history of restricting voter registration drives, although neither has reported cases of registration fraud in the past election cycle.

Another target in this election cycle is election day registration, also known as same day registration.

Prior to 2011, eight states – Idaho, Iowa, Maine, Minnesota, Montana, New Hampshire, Wisconsin, Wyoming – allowed for same day registration, meaning that citizens could register and vote at their local polling place at the same time. In addition, North Carolina allowed for same day registration for the early voting period and Ohio for the first week of early voting. In Connecticut and Rhode Island, election day registration was provided under special circumstances.

Several legislatures have moved to eliminate same day registration, with bills introduced in Maine, Montana, New Hampshire, North Carolina, and Ohio. Efforts to repeal election day registration have fallen almost entirely along partisan lines, with most Republican legislators supporting it, while all Democratic legislators opposing it.

The most widespread legislative development since the previous election cycle involves the imposition of stricter identification requirements on voters.

Prior to the 2010 midterm elections, only Indiana and Georgia had strict photo ID requirements on voters. Since then, laws have been introduced in Alabama, Kansas, Rhode Island, South Carolina, Tennessee, Texas, and Wisconsin. Bills were passed but vetoed in five additional states: Minnesota, Missouri, Montana, New Hampshire, and North Carolina. Moreover, a number of other states have active photo ID bills pending on ongoing legislative sessions.

Voting rights advocates maintain that the new legislation is designed to target a wide portion of the electorate – in particular low-income, young, and older citizens, and especially minorities – that do not have state‑issued photo IDs. It is estimated that 11 percent of U.S. citizens do not possess the required identification, and that millions of Americans could be disenfranchised by the new laws.

Unregulated money

The largely unregulated role of private money in U.S. elections resulting from the 2010 Citizens United Supreme Court decision that allowed unlimited spending by corporations, unions and private individuals is another area of concern.

The vast campaign spending in 2010 and the widespread use of negative advertising led the 2010 OSCE election observation mission to describe a “dirty campaign environment” with “money playing a significant role in creating an uneven playing field between candidates.”

“Upwards of four billion dollars were spent on the campaigns, making it the most expensive mid-term election in the United States to date,” OSCE observers noted. “About three-quarters of that money was spent on political campaign ads on television and radio. The ads inundated the airwaves, made huge profits for many television and radio stations, and also turned off many voters.”

With a legislative attempt to mitigate the effects of Citizens United failing in 2010, the problem of out-of-control campaign financing is reaching new heights in the current election cycle. Since July 2010, the number of registered “Super PACs” spending unlimited amounts of money has increased to 354. As of March 6, they had reported total receipts of more than $130 million and independent expenditures totaling almost $98 million in the 2012 election cycle.

Other areas of concern

Since the last presidential election, many other important recommendations from the OSCE on how to improve the deeply flawed U.S. electoral system have remained unaddressed by U.S. policymakers. These include:

  • decreasing the number of required signatures for nomination of independent or third-party candidates
  • lifting the restriction of voting rights for felons and ex-felons
  • providing full representation rights in Congress for all US citizens, including those of Washington DC and U.S. territories
  • establishing minimum standards for access of international observers invited by the U.S. authorities
  • introducing legal safeguards against possible partisan conduct of election officials
  • promoting voter registration, including through civil education programs, and considering possibilities for ‘automatic’ voter registration based on other interactions of citizens with the state
  • enhancing transparency and the integrity of electronic voting equipment
  • reviewing the campaign finance system

But as the OSCE stated in its Needs Assessment Mission Report prior to the 2008 general elections, “several issues raised in previous OSCE/ODIHR reports, and those highlighted by OSCE/ODIHR NAM interlocutors, merit further attention.”

With Election 2012 now fully underway, it is becoming increasingly obvious that the only changes being made to the U.S. electoral system represent steps backwards rather than forwards.

Instead of heeding previous recommendations from the international community or further developing areas of progress – such as the implementation of early voting in 2008 – the United States is instead backsliding into an even less democratic electoral system.

Besides ensuring pre-determined electoral outcomes, these changes are also sure to further erode public trust in elections, leading to decreased participation in voting and more entrenched cynicism across the country.

They also demonstrate a profound double standard by the United States government, which often cites OSCE election-related commitments when criticizing other countries, but clearly cannot be bothered to live up to the same commitments at home.

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