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Chaotic, arbitrary primary process underscores need for U.S. electoral reform
Super Tuesday is afoot, with 661 delegates at stake in the Republican primary and 865 delegates for the Democrats. This means that a presidential candidate who does well could shift the momentum and change the media narrative in a way that fundamentally alters the course of Election 2016. Or not.
Among the 12 states and one U.S. territory voting on March 1 are Alabama, Arkansas, Georgia, Massachusetts, Minnesota, Oklahoma, Tennessee, Texas, Vermont and Virginia. Voting occurs throughout the day, with polls closing at different times depending on the state. Polls in Alabama, Georgia, Vermont and Virginia close at 7 p.m., while Massachusetts, Oklahoma and Tennessee close their polls at 8 p.m. In Texas, some polls close at 8, but others close at 9. Arkansas' polls close at 8:30 p.m. Alaska's caucuses close around midnight.
The big day, which could make or break several candidates on the Democratic and Republican sides (those who haven't already dropped out after disappointing showings in earlier primary states), underscores the largely arbitrary and chaotic nature of United States primary elections, which are something of an oddity in advanced democracies.
While primaries as such are relatively common, with many European countries organizing similar processes to nominate party leaders who then go on to assume the post of prime minister, in the United States the elections have a special significance, because unlike most other Western democracies, the U.S. adheres to a relatively rigid two-party system that severely disadvantages independent and minor parties.
The underlying difference is that most European countries are multi-party parliamentary democracies, which means that national governments are derived from the majority in the parliament, and utilize a system of proportional representation which ensures that parties that receive a certain amount of votes (usually a threshold of three to five percent) are guaranteed seats in the parliament.
In the United States, which uses a strict and archaic winner-take-all system and erects severe obstacles to independent parties (including such challenges as stringent ballot access rules that vary widely from state to state and being excluded from televised debates), the two dominant parties are virtually ensured an effective monopoly over the political system. This means that the primaries are the only opportunity for the people of the United States to offer any significant input on who should assume the highest elected office in the land.
Because the primary process is so integral to the broader U.S. electoral system, being the only chance for average citizens to have a meaningful say in which of the two ultimate candidates becomes president, certain democratic principles should be applied to this process, for example, 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.
In the ICCPR, for example, the signatories agreed that "Every citizen shall have the right and the opportunity … to take part in the conduct of public affairs, directly or through freely chosen representatives; [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."
Subsequent paragraphs provide for "the right of citizens to seek political or public office, individually or as representatives of political parties or organizations, without discrimination; the right of individuals and groups to establish, in full freedom, their own political parties or other political organizations;" and call for such parties to be granted "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."
The Copenhagen Document also "guarantee[s] universal and equal suffrage to adult citizens" and "ensure[s] that votes are cast by secret ballot or by equivalent free voting procedure, and that they are counted and reported honestly with the official results made public." It further emphasizes the importance of avoiding discrimination among individual candidates and avoiding unnecessary obstacles to candidacies.
A strong case could be made that the U.S. electoral process is in one way or another violating just about every single one of these commitments. Not only do many U.S. states opt for a caucus system that is specifically designed to prevent any sort of secrecy of the vote (a universally accepted fundamental principle of free and fair elections), but perhaps more significantly, by utilizing a staggered system of primary elections, the United States is failing to guarantee universal and equal suffrage — and at the same time unfairly disadvantaging some candidates.
Because so much disproportionate weight is given to the states holding early primaries, including New Hampshire and Iowa, and because states holding primaries later – such as California – often don't even get to vote for the same candidates (many of whom will have already dropped out by that time), the system is fundamentally flawed and effectively disenfranchises millions of would-be primary voters. (For example, New York, the third-largest state, voted after the nominees had been selected in both parties in 2000 and 2004.)
Further, the system itself is riddled with irregularities and an ad hoc, unprofessional and chaotic election administration framework that varies wildly from state to state. See, for example, the chaos that unfolded at a Nevada Democratic caucus on February 20, 2016:
Of course, there were also serious irregularities in the Republican Nevada caucuses. As reported by The Hill on Feb. 23:
Republican officials are looking into reports of double-voting at Tuesday night's Nevada caucuses, according to multiple reports.
The party is currently reviewing the process, and a Republican National Committee official said the "chaos is contained," according to Mashable.
One GOP official said the party will be reviewing a master sign-in sheet, according to well-known Nevada journalist Jon Ralston.
"Obviously we take reports of double-voting very seriously and we will be reviewing the ballots," a GOP official said.
Or, consider the insanely arbitrary nature of the earlier Iowa caucuses, which decided many of its results not by secret ballot as required by international election-related commitments, but by flipping a coin:
More generally, candidates are not treated equally or fairly, because those who perform badly in the early primary and caucus states come under enormous pressure to end their candidacies before they have a chance to compete in Super Tuesday and later primary states such as Florida, California and New York, which hold the lion's share of state delegates.
And of course, there is also the little matter of "superdelegates," the 15 percent of Democratic National Convention delegates who are seated automatically and may choose to vote for whoever they want, regardless of the voters' desires as expressed in primary elections. The superdelegates include distinguished party leaders and elected officials, including all Democratic members of the House and Senate and sitting Democratic governors.
Establishment favorite Hillary Clinton has already racked up support from at least 459 superdelegates, which effectively amounts to a thumb on the scale of the election. Although she only has 52 pledged delegates that she's picked up through primary elections and caucuses, compared to 51 pledged to Bernie Sanders, she is ahead of Sanders in the overall delegate count by 503-70.
So, rather than being in a virtual dead heat, she is in fact leaps and bounds ahead of her democratic socialist rival. Some might call this a rigged game.
There is also the issue of widespread, profound and deep-seated media bias, which was recently described by independent journalist Amy Goodman on CNN's Reliable Sources. In addition to criticizing the media's over reporting of polling data and the so-called "horse race" approach to covering presidential campaigns, she described the disproportionate and unbalanced level of attention given to candidates such as Donald Trump compared to the paltry and unfavorable coverage given to Bernie Sanders.
"It is astounding that Bernie Sanders is where he is today," she said. "Look at that Tyndall Center report that found in 2015, in the months leading up to December, you had 234 total network minutes, like almost four hours, CBS, NBC, ABC, covering Trump. That's four hours and how much got coverage? Sanders got 10 minutes. On ABC World News Tonight in that year, Sanders got 20 seconds. Trump got like 81 minutes."
This sort of media bias has been a frequent complaint by international observers monitoring U.S. elections. Following the U.S. midterm elections in 2014, observers from the OSCE noted that "while the elections benefitted from extensive media coverage, with diverse and critical analysis of many aspects of the campaigns, the actual interest of the public appeared limited."
"The two main parties' campaigns were widely covered in the media," OSCE observers noted, but "much of the focus was on campaign funding and polling data rather than substantive policy issues."
It seems that little has changed in this regard since those criticisms were leveled in November 2014. And as Election 2016 really starts to get underway, it's not looking promising for a shift to more constructive and balanced media coverage.
This is a situation that should be remedied before the next election if the United States is to live up to its frequent claims that it is the world's leading democracy — one that takes its international obligations seriously.
Equally important is fundamental reform of the primary process, for example through a national primary voting system — in which all presidential primaries are held on the same day — or at least opening up the general elections to independent and minor parties such as the Greens, so that the primary elections are not as fundamentally important as they are now.
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.
Sanders' candidacy exposes fundamental flaws in U.S. electoral system
A long-time independent and self-described socialist, Vermont Senator Bernie Sanders recently decided to run for president within the confines of the two-party system under heavy pressure from Democratic Party loyalists not to be a third party "spoiler" candidate.
For months, Sanders was the target of public appeals from groups such as Progressive Democrats of America that implored him to seek the nomination of the Democratic Party rather than run as an independent, as he has done in numerous Vermont elections since the 1970s.
As a PDA petition pointed out, in 2004 Sanders "understood the very real danger of total Republican control of the U.S. Government" and "supported Democratic nominee John Kerry for President over his long-time friend and ally, Ralph Nader."
Similarly, in order "to prevent the current crazed, mean, and dangerous incarnation of the Republican Party from seizing total power," it is important that Sanders "commit[s] to running in the 2015/2016 Presidential primaries as a Democrat," PDA insisted.
The fear of rank-and-file Democrats is that having a third party/independent challenger in a general election between a Democrat and Republican would siphon votes from the Democratic nominee, and hand the election to the Republican nominee. It is a fundamental flaw of the U.S. electoral system that perennial third party candidate Ralph Nader recently spoke about on Democracy Now.
Asked why Sanders may have decided to forgo his longtime independent status in favor of seeking the Democratic nomination, Nader replied:
Well, that's always been a dilemma he's been deliberating for the last year or so. If he runs as an independent, he can go to November. If he runs as a registered Democrat, he's done in April or May, assuming he doesn't defeat Hillary Clinton or others, but he gets on the televised primaries. Where as an independent he could be marginalized, as a Democrat he's going to get on quite a few debates and in the primary.
While what Nader said about the likelihood of being marginalized as an independent is certainly true, what he failed to mention is that it's not only a candidate's independent or third-party status that leads to media marginalization, but also – perhaps more importantly – what it is that the candidate has to say.
With his message of income inequality, corporate corruption and environmental sustainability, Sanders was pegged early on as an unserious fringe candidate by the media establishment, which is dominated by the very business interests that he rails against.
Just as Ron Paul's antiwar message was systematically sidelined from mainstream media coverage in the 2012 presidential campaign – notwithstanding the fact that he ran as a Republican and boasted some traditional early indicators of a vibrant campaign – it seems that the media establishment has already made a determination that Sanders' candidacy is not to be taken seriously.
In an analysis for Media Matters for America, Eric Boehlert noted that despite Sanders' campaign rallies drawing thousands of people – making them some of the largest campaign events of 2015 by either Democrats or Republicans – the media has decided not to cover them as major news events. Sanders' first major campaign rally since announcing his presidential candidacy last month, for example, was completely ignored by the Washington Post and New York Times, while the network news programs night covered the event sparsely.
According to Boehlert, "At a time when it seems any movement on the Republican side of the candidate field produces instant and extensive press coverage, more and more observers are suggesting there's something out of whack with Sanders' press treatment. And they're right."
When Sanders does get reported on in the media, much of the coverage portrays him as outside the mainstream of American politics, or views him solely through the prism of Hillary Clinton. "It's all about how his campaign might affect her strategy and her possible policy shifts, instead of how his campaign will affect voters and public policy," Boehlert writes. "On the Republican side, candidates are generally covered as stand-alone entities, not as appendages to a specific rival."
Beyond that, much of the coverage specifically declares that he has no chance of winning, an odd role for the media to play in covering a nomination campaign. The press, after all, is supposed to be covering the nomination process, not determining the nomination process. Yet, this is what a few prominent news outlets have had to say in recent weeks: "Bernie Sanders isn't going to be president," declared a Washington Post headline. "He Won't Win," said Newsweek, "So Why Is Bernie Sanders Running?" MSNBC: "Why Bernie Sanders matters, even if he can't win."
The clear consensus among the media elite is that Sanders' candidacy is little more than an annoyance, sort of like ants at a picnic. Sanders is to be tolerated at best but certainly not to be welcomed or treated with the respect and reverence that a "real" presidential candidate like Hillary Clinton or Jeb Bush are to receive.
This media bias is infuriating to those who would like to see the press perform its role as a reporter of the news rather than as a shaper of the news, but beyond being aggravating it is also arguably a violation of international commitments on holding free and fair, democratic elections.
As a signatory to the Organization for Security and Cooperation in Europe's 1990 Copenhagen Document, the United States has agreed to certain commitments to ensure genuinely democratic elections, one of which being equal media access for election stakeholders. Specifically, OSCE countries must ensure "unimpeded access to the media on a non-discriminatory basis for all political groupings and individuals wishing to participate in the electoral process."
As the OSCE's Office for Democratic Institutions and Human Rights (OSCE/ODIHR) further explains in its handbook for election observation,
Equal conditions should be ensured for all participants in the election process so that they compete on a level playing field. … Candidates and political parties should have unimpeded access to the media on a non-discriminatory basis, and state or public media should meet their special responsibility for providing sufficient, balanced and impartial information to enable the electorate to make well-informed choices.
This requirement for media access and balance goes for both major party candidates and minor party candidates, and besides media access, OSCE countries must also "respect the right of citizens to seek political or public office, individually or as representatives of political parties or organizations, without discrimination."
Both the endemic media bias in the United States and the two-party system itself – which systematically discriminates against parties other than the Democrats and Republicans – are likely violations of these obligations, which also include respecting "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."
These are all areas in which the U.S. is failing to live up to democratic standards for elections, despite its frequent claims of being the greatest democracy in the world, and could do much better.
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).
Amending the Constitution to ensure free and fair elections
A U.S. Senate vote is scheduled next month on a proposed Constitutional amendment to empower Congress to enact reasonable campaign finance legislation. The movement to amend the Constitution is a response to recent Supreme Court decisions such as Citizens United and McCutcheon, which overturned campaign finance laws on constitutional grounds, and is seen by many as the best chance to promote clean elections that aren't dominated by a few wealthy oligarchs.
Considering that the highly unregulated campaign finance system of the United States has long been a concern of the international community, the vote could also be seen as a demonstration of the U.S. commitment to meeting its international obligations on holding democratic elections.
Although international election-related commitments are somewhat ambiguous on the topic of campaign finance laws, it is widely understood that unregulated private money has the potential for tilting the playing field in favor of a particular party or candidate, thus potentially violating the requirement in the 1990 Copenhagen Document for OSCE member states (including the U.S.) to "provide political parties and organizations with the necessary legal guarantees to enable them to compete with each other on a basis of equal treatment before the law and by the authorities."
Following the 2010 midterms, OSCE election observers noted that "Money played a significant role, creating an uneven playing field between candidates. About three-quarters of the total of upwards four billion dollars was spent on political campaign ads on television and radio. The ads inundated the airwaves, turning many voters off."
In its statement on the 2012 general elections, the OSCE noted "the unprecedented and often negative role played by private campaign financing [which] has a potential to impact negatively on the fairness of the process."
The amendment being considered by the Senate in a vote scheduled for Sept. 8 would address some of these concerns by unequivocally empowering Congress to adopt laws geared towards curbing the undue influence of big money in U.S. elections. If the amendment passes by a 2/3 vote of both houses of Congress, it would then have to be ratified either by the legislatures of 3/4 of the states or by conventions in 3/4 of the states, depending on which means of ratification Congress proposes.
The full text of the amendment is as follows:
Section 1. To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.
Section 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.
Section 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.
From the perspective of the U.S.'s international election-related commitments, the amendment would likely be seen as a positive step in redressing some of the problems identified in the U.S. electoral system. As the OSCE's Office for Democratic Institutions and Human Rights (ODIHR) explains in its "Guidelines for Reviewing a Legal Framework for Elections," countries "may establish reasonable limits on private financing of political parties and candidates in order to preserve fair competition during elections and lessen incentives for corruption and undue influence in politics."
When it comes to independent expenditures, the question at the heart of the Supreme Court's 2010 Citizens United decision, ODIHR further explains that outside groups "should have the right to expend funds during a campaign, [but] those expenditures should also be subject to reasonable limitations and disclosure requirements."
Recognizing that expenditure limits may be problematic in countries such as the U.S. whose constitutional framework considers the right to spend money in a political campaign to be protected as political speech, ODIHR nevertheless explains that "within the context of international good practice, however, a reasonable limitation on expenditures is acceptable because a state has an obligation to ensure that the free choice of voters is not undermined, or the democratic process distorted, by the disproportionate expenditure on behalf of any candidate or party."
In this regard, a reasonable limitation can help promote the existence of a "level playing field," says ODIHR, and "ensure that the campaign information received by voters does not disproportionately favor one contestant because that contestant is able to monopolize the flow of information through campaign expenditures."
Numerous grassroots campaigns are mobilizing to put pressure on the U.S. Senate ahead of the Sept. 8 vote. The group Public Citizen is urging people to contact their senators to help build support for an amendment.
"Now is the moment for your senators to stand up for democracy against the enormous deluge of money in our elections," says Public Citizen, warning that "a weak vote may make it difficult to bring the issue up again."
According to an action alert by CREDO Action,
An overwhelming majority of Americans oppose the toxic influence of money in politics. But a conservative majority on the Supreme Court has systematically eroded barriers to the 1% buying elected officials.
Now we have a major opportunity to fight back.
On September 8, the Senate is scheduled to vote on a constitutional amendment to overturn Citizens United and other toxic Supreme Court decisions that have opened the floodgates to unlimited political spending by corporations.
CREDO is urging citizens to sign a petition stating that "Corporations and the ultra-rich shouldn't be allowed to buy our elected officials by spending unlimited amounts of money influencing elections. Pass Senate Joint Resolution 19, which would amend the Constitution and overturn Citizens United."
To add your name, click here.
FCC's proposed rule changes on net neutrality violate a host of international obligations
Everyone shall have the right to freedom of expression; this right shall include freedom 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.
— Article 19 of the International Covenant on Civil and Political Rights
With one month to go before the public comment period ends on the Federal Communications Commission's recent vote to advance a proposal that would end net neutrality and create a system of paid-prioritization online, a new report has come out criticizing the FCC's actions as potentially undermining the U.S. government's international obligations regarding freedom of expression.
The legal analysis issued Monday by the Organization for Security and Cooperation in Europe – an inter-governmental organization that counts the United States as one of its 57 members – found that the rules on net neutrality (the principle that internet service providers treat all data equally and not discriminate based on content or price paid) proposed by the FCC may violate one or more of the following international accords to which the United States has subscribed: the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights, and the 1990 OSCE Copenhagen Document.
Prepared for the Office of the OSCE Representative on Freedom of the Media by George Washington University Law School Professor Dawn Carla Nunziato, the report points out that Article 19 of both the Universal Declaration of Human Rights and the ICCPR protects the right to freedom of expression and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Despite this international obligation of the U.S. government, the FCC has proposed rules that would replace the so-called Nondiscrimination Rule with a No Commercially Unreasonable Practices Rule. As Prof. Nunziato explains it, "Permitting 'commercially reasonable' practices by broadband providers will allow – and indeed encourage – broadband providers to experiment with business models that include paid prioritization – and even exclusive paid prioritization – upon individualized negotiations with edge providers (providers of content, applications, and services)."
In practice, what this would mean is that broadband providers would be able to negotiate exclusive pay-for-priority arrangements with individual content providers, permitting broadband providers to anoint exclusive premium content providers "and effectively become censors of other disfavored, poorly funded, or unpopular content, by choosing not to favor such content for transmission to subscribers."
For example, an internet service provider like Comcast "could enter into a deal with Foxnews.com to anoint it as the exclusive premium news provider for all Comcast subscribers, while comparatively disadvantaging all other news providers."
Similarly, the FCC's Proposed Rules would allow a broadband provider like Verizon to enter into an arrangement with the Republican National Committee to anoint it as the exclusive premium political site for all Verizon subscribers, while disadvantaging the Democratic National Committee's and other political sites.
She goes on to describe other possible effects of this rule change:
Otherwise protected speech – a blog critical of Verizon's latest broadband policies, a disfavored political party's website – could be disfavored by broadband providers and not provided to Internet users in a manner equal to other, favored Internet content – subject only to the Proposed Rules' vague prohibition against commercially unreasonable conduct. Such a regime would endanger the free flow of information on the Internet, would threaten freedom of expression and freedom of the media, and would herald the beginning of the end of the Internet as we know it.
The possibility of being sidelined by the ISPs could lead to "further entrenched market power by dominant content and applications providers, self-censorship by content providers who might alter their content to make it more palatable to broadband providers, and a reduction in the overall amount of speech that is meaningfully communicated as a result of content not being delivered effectively to its intended audience."
These very real prospects led the OSCE Representative on Freedom of the Media, Dunja Mijatovic, to weigh in on the controversy yesterday.
"The proposed rules will allow telecommunications providers to discriminate against content which may conflict with their political, economic or other interests," Mijatovic said in a letter to FCC Chair Tom Wheeler. "This would contradict international standards, OSCE commitments on free expression and freedom of the media and longstanding U.S. First Amendment principles."
Besides U.S. international commitments on freedom of information, the net neutrality controversy spurred by the FCC and its chairman Tom Wheeler raises questions of U.S. compliance with its anti-corruption obligations under the UN Convention against Corruption. As a state party to this Convention, the United States has agreed to taking measures to prevent conflicts of interest and corruption in both the public and private sphere. In particular,
Each State Party shall, in accordance with the fundamental principles of its domestic law, endeavour to adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest.
Each State Party shall endeavour, where appropriate and in accordance with the fundamental principles of its domestic law, to establish measures and systems requiring public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials. …
Preventing conflicts of interest by imposing restrictions, as appropriate and for a reasonable period of time, on the professional activities of former public officials or on the employment of public officials by the private sector after their resignation or retirement, where such activities or employment relate directly to the functions held or supervised by those public officials during their tenure.
Yet, the powerful chairmanship of Wheeler at the FCC demonstrates once again how the United States routinely flouts this obligation to prevent conflicts of interests. Prior to joining the FCC, Wheeler worked as a venture capitalist and lobbyist for the cable and wireless industry, with positions including President of the National Cable Television Association (NCTA) and CEO of the Cellular Telecommunications & Internet Association (CTIA). He also raised over $500,000 for Barack Obama's two campaigns.
As a reward for this financial backing, President Obama then appointed him to his current position where is empowered with rewriting the rules for the industry that once employed him. This sort of patronage is not only prohibited under the Convention against Corruption, but now, as we see, is leading to multiple violations of international principles, as documented by the OSCE in its report issued Monday.
"The Internet was conceived as an open medium with the free flow of information as one of its fundamental characteristics," Mijatovic said upon the report's release. "This should be guaranteed without discrimination and regardless of the content, destination, author, device used or origin."
Mijatovic expressed her hope that her recommendations will be taken into consideration by the FCC.
The legal analysis of the proposed net neutrality rule changes is available here. To comment to the FCC regarding its proposed rules regarding net neutrality, click here.
A very accessible, succinct explanation of the FCC's proposed rule changes was offered recently by John Oliver on his cable show Last Week Tonight:
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.
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.
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.
Obama's election commission, the Voting Rights Act and the U.S.'s international commitments
As the presidential voting commission that Barack Obama announced in his recent State of the Union address prepares to convene, the U.S. Supreme Court appears likely to strike down Section 5 of the 1965 Voting Rights Act, which could, in effect, render any proposed reforms of the president's commission toothless.
While Obama's commission will reportedly focus specifically on Election Day issues and not on broader issues of electoral reform, the Court's striking down of Section 5 – which mandates that states with a history of racial discrimination submit changes to voting laws to the U.S. Justice Department for preclearance – could mean that restrictive voter registration laws, racial gerrymandering and stringent identification requirements become more common throughout the country.
Supreme Court watchers are in general agreement that the Court, which heard oral arguments on the Voting Rights Act Wednesday, is poised to strike down Section 5, likely in a five-to-four decision.
This would mean that for millions of people, the voting experience on Election Day that Obama's commission hopes to address will largely be a moot point. The outcome of the election will already have been pre-determined to a very high degree before anyone even steps in line to vote on Election Day.
Although many commentators – and 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.
The long waiting times on Election Day that many voters have to endure are really just the tip of the iceberg of an electoral system plagued by partisan manipulation and racial biases. In a recent interview on Democracy Now, NAACP Head Benjamin Jealous called it "the hyperpartisanization" of election administration. He noted 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 welcomed the convening of a presidential commission as needed to address voter suppression and attacks on voting rights, noting 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:
This has been 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. And, you know, you can travel around as I do in different cities, and on the wealthy side of town the lines are moving, and near the universities and the poor parts of town, they're stuck. And this is the, if you will, the most basic, most rudimentary form of voter suppression. 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 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, released on Feb. 13:
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,12 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."
The commission being convened by President Obama, however, appears to have a much more limited mandate. It will be chaired by Bob Bauer, former general counsel for the Obama campaign, and Ben Ginsberg, former election lawyer for Republican candidate Mitt Romney's 2012 campaign and is tasked with finding "common-sense, non-partisan solutions" to "reduce waiting times at the polls and improve all citizens' voting experience," Obama said.
In announcing the commission in the State of the Union address, the president said, "We can fix this, and we will. The American people demand it. And so does our democracy."
Indeed, it does appear that the American people are ready for electoral reform, but Obama's vision may be short-sighted in limiting the commission so specifically to this one issue of long lines at the polls. A poll conducted just after the Nov. 6 election found that an 88 percent majority supported an array of electoral reforms:
Eighty-eight percent of Americans who voted in last week's election support establishing national standards for voting, including the hours polls are open, who is eligible to vote, and the design of ballots, according to a new poll by the John D. and Catherine T. MacArthur Foundation. Currently, voting rules and procedures differ from one community to another, across as many as 10,000 voting jurisdictions, although the date of the Presidential election is shared by all.
Half of those polled are "strongly supportive" and an additional 38 percent are "somewhat supportive" of national standards. Majorities of Republicans, Democrats, and Independents support consistent standards for national elections rather than the current approach of rules and procedures that can vary greatly from community to community. The idea is so popular that it draws majority support from voters across all races, genders, incomes, and geographic regions in the survey.
With that kind of support for strong national standards for U.S. elections, it is slightly puzzling why Obama would choose to provide such a limited mandate to his presidential commission. While the establishment of this commission was generally well received by voting rights advocates, some were less than impressed.
Elisabeth MacNamara, president of the League of Women Voters, said that she was disappointed in the president for failing to take bold action.
"Setting up a commission is not a bold step; it is business as usual," MacNamara said in a statement. "The president could have done much better by pointing to real solutions like that in legislation already introduced on Capitol Hill to require early voting, set limits on waiting times, provide for portable voter registration and set up secure online voter registration."
Administration officials however do say that the commission is part of a larger plan to reform the election process. Assistant Attorney General Thomas E. Perez told The Huffington Post that options on the table include supporting election reform legislation, implementing regulations and taking other executive actions.
In considering these possible reforms, the administration would do well to recall the international obligations of the United States as a party to the International Covenant on Civil and Political Rights and the 1990 OSCE Copenhagen Document, as well as heed the recommendations made by the OSCE in its final report on the 2012 election.
International observers note serious shortcomings in Election 2012
Despite warnings from several U.S. states that international observers would not be allowed to visit polling stations, the Organization for Security and Cooperation in Europe (OSCE) completed its observation of the U.S. general elections this week, and in two separate press conferences issued pointed criticisms of the electoral system in the United States. In key respects, the OSCE found the U.S. election falling short of international standards.
In a press conference on Wednesday, the head of the OSCE Office for Democratic Institutions and Human Rights (ODIHR)'s observation mission, Ambassador Daan Everts, noted "broad public confidence" in the U.S. electoral system, but pointed out that there are "areas that clearly need further study and work."
The main areas of concern for ODIHR include the accuracy and integrity of the voter registration system, which is overly decentralized and prone to mistakes; the voting rights of disenfranchised U.S. citizens including ex-felons and Americans who are not registered to vote; the politicized issue of voter identification, which is marked by a debate over integrity vs. access, and the campaign financing system, which is characterized by a lack of transparency and accountability.
An overriding concern of the observers appeared to be the tendency to disenfranchise various segments of the population, whether inadvertently by making voter registration a cumbersome process or intentionally, by stripping ex-felons of the right to vote. An estimated 5.9 million U.S. citizens are disenfranchised due to a criminal conviction including some 2 million who have served their sentences. In most states, felons can regain the right to vote after fulfilling their sentences, but in 12 (Alabama, Arizona, Delaware, Florida, Iowa, Kentucky, Mississippi, Nebraska, Nevada, Tennessee, Virginia and Wyoming), felons may permanently lose their voting rights.
Everts stated that stripping ex-felons of their voting rights may be a violation of the U.S.'s international commitments as a member of the OSCE. "International norms," he said, "require that those rights be restored after the completion of sentences."
Another issue identified by the observers was regarding the enormous amount of money spent on the campaigns, which this year was estimated at $6 billion – by far the most money ever spent on a U.S. election (or an election anywhere in the world for that matter). Much of this money was funneled through so-called Super PACs, making it virtually untraceable and leading to a proliferation of misleading advertisements and attempts at voter suppression.
This lack of transparency "must be addressed," said Everts.
With the electoral debacle of 2000 still on people's minds, Everts acknowledged that fears remain of a prolonged election dispute due to the flawed system of election administration and vote-counting. Specifically, he pointed to the possibility of a Florida 2000 scenario playing out once again, and said that some states have not learned the appropriate lessons. Legislation is clearly needed to ameliorate the outdated election systems of certain states.
Indeed, with the 2012 Florida election still unresolved several days after the Nov. 6 balloting, Everts may have a point. The only reason that the U.S. was not subjected this year to a prolonged electoral dispute as it was in 2000, was that Obama had already clearly won the Electoral College votes without the state of Florida.
In conclusion, the ODIHR noted that despite the elections largely taking place "in a pluralistic environment," decisions on technical aspects of the electoral process "were often unduly politicized."
"Highly competitive campaigns were covered extensively in the media, allowing voters to make informed choices," ODIHR concluded. "While characterized by broad public confidence, further steps should be taken to improve the electoral process, in areas such as voting rights, the accuracy of voter lists, campaign finance transparency, recount procedures, and access of international election observers."
When it comes to the media environment – the fairness of which is considered an integral aspect of democratic elections – ODIHR observed "highly partisan" coverage on the cable news networks.
Both Obama and Romney received more negative than positive coverage, according to ODIHR's analysis. Fox News dedicated 66 percent of its coverage to Obama, ODIHR found, and 34 percent to Romney. Coverage of Obama on Fox News was mostly negative in tone (72 percent), while MSNBC dedicated 34 percent of its coverage to Obama and 66 percent to Romney. Coverage of Romney on MSNBC was mostly negative in tone (87 percent).
Another problem identified by ODIHR was that broadcast media dedicated the greater part of their electoral coverage to non-substantive issues such as daily opinion polls and the holding of campaign events (64 percent), often at the expense of substantive discussion of policy (36 percent).
In a separate press conference on Nov. 8 the OSCE's other election monitoring body, the OSCE Parliamentary Assembly (OSCE PA), offered a somewhat rosier picture of U.S. elections, although also identified substantial problems. Joao Soares, the head of the OSCE PA's election observation mission – which included some 100 members of parliament from across Europe – said that despite some concerns, the election was "yet another demonstration of the country's commitment to democracy."
He said among those concerns were the "often negative role" played by campaign financing and "the avalanche of paid advertisements," which he described as "propaganda." The OSCE PA observers also noted controversial legislation on voter ID and early voting, which it said had "a tendency to reduce confidence in the process."
Despite those concerns, Soares said "things work very well here in the United States." Regarding the massive amounts of money spent by corporations to influence the election, he claimed that it did not create unfair disadvantages for any candidate.
"These were the most expensive elections in U.S. history, and although this cash flow did not create an uneven playing field, it could have a negative effect on the factual independence of elected politicians," he said.
The claim that the spending did not create an uneven playing field seemed to refer specifically to the race between Mitt Romney and Barack Obama, not to the congressional races, the primaries, or to third-party candidacies. As the OSCE PA's full post-election statement made clear, the spending "did not yet create an uneven playing field between the two major presidential candidates." (No mention was made of other candidates.)
The OSCE PA's largely positive assessment of the elections – particularly its description of voting day procedures – was challenged at the press conference by Sergei Chumaryov, a senior counselor at the Russian embassy in Washington
"I had the opportunity to also monitor the elections in Florida – two main, key counties where OSCE observers, Parliamentary Assembly or the organization as such, were not present: Miami-Dade County and Palm Beach County," he said. "And I would tell you that I have a completely different story. Are you here to monitor or to visit Potemkin polling stations?" Chumaryov claimed the observers only visited polling stations "where you were allowed to visit."
The OSCE PA's team was deployed to Pennsylvania, Maryland, Washington DC, Virginia and North Carolina, but not to swing state Florida – the site of many problems with early voting and election day procedures. They also declined to visit Ohio, which had its share of problems.
In defense of the OSCE PA's limited observation, Soares said, "We [chose] freely the polling stations we wanted to visit" and noted that they were not obstructed by the authorities in any way.
The Russian challenge to the OSCE's findings comes after Russian election chief Vladimir Churov last week described the U.S. electoral system as "the worst in the world."
A report commissioned by Russia's Central Election Commission claimed that the U.S. electoral system is neither free nor fair. In contrast to the OSCE's findings, which largely ignored the existence of third parties in the United States, the Russian report questioned the fairness of an election that systematically excludes the participation of independent parties such as the Libertarians and the Greens.
"Candidates were not granted equal access to the media, particularly to television debates, which were held exclusively between two candidates," said Aleksandr Ignatov, one of the report's authors. "And we all know there were six candidates. The principle of open elections was not respected since there are no guarantees for international observers."
Participants in yesterday's OSCE PA press conference largely dismissed this report. Senator Benjamin Cardin (D-Maryland), the co-chairman of the U.S. Helsinki Commission, was at the press conference. He called the Russian report "regrettable."
Nevertheless, the Russians' focus on the fairness of the election for third parties is an area that the OSCE seems to have neglected. This is despite the fact that the obstacles that third parties face, such as ballot access laws and exclusion from the media and televised debates, are clear violations of the U.S.'s OSCE commitments as spelled out in the 1990 Copenhagen Document.
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