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ELECTION OBSERVATION IN THE LONG TERM
David M. Mason, Vice Chairman
United States Federal Election Commission
OSCE Human Dimension Seminar of Election Processes
Warsaw, 29 May 2001
When the heads of central banks gather in international conferences, the world notices: reporters crowd hallways, investors hesitate, markets pause, agreements constitute major news.
When the heads of national electoral commissions gather, few notice, few appear to care. This difference is understandable - the World has always loved money - but unfortunate. What election officials do, or fail to do, is more important to the future of their countries and to fulfilling the aspirations of our fellow citizens than monetary policy or market reform. A fair and efficient election system is ultimately more important than even an adequate national defense or criminal justice system. The human dimension is more important than the military or economic dimensions, for military and economic affairs are properly ordered to the human dimension and are properly directed by it.
Functional defense, police and monetary systems are essential, but they fulfill needs of a lower order: survival, food, clothing, shelter. Ultimately humans are meant to be free. To be free, people must govern themselves. And in all but the smallest communities, self-government is exercised through elections. Thus, conducting and regulating elections is the most fundamental and necessary task for the government of a free people. The legitimacy of every other action of the government relies upon free, fair and honest elections. Elections are the principal means through which nations determine their own destinies. We who hold responsibility for elections participate in fulfilling the highest calling of a free people.
We should share some pride among ourselves in playing a special role in that high calling, as unrecognized by others as it may be. Perhaps we can take some comfort when we return home in the appreciation shared by those of us here in the way elections uniquely shape and form national destinies. And, of course we hope to learn some lessons from one another about the different ways in which the challenges of democracy can be met.
I want to offer from the American experience three observations about the role in election processes by international organizations such as the OSCE:
The need for permanent and continuing vigilance in ensuring free and fair elections;
The lengthy period needed for specific remedial measures in places where voting rights historically have not been fully respected or where elections have not been free from taint;
The permanent value of a forum in which election administrators can compare experiences and methods in an effort to improve their own national practices.
In describing certain features of the US election system I am not necessarily recommending those features as a complete model for countries with different constitutional and legal structures; there are a variety of legitimate ways to run democracies. But the contrast between our federated system and the more unitary systems prevalent in most other countries may present some useful considerations.
The United States was founded when 13 separate colonies joined together in a revolution. For the first eleven years of our history we operated with almost no national government; we had a legislature, but it had no power to tax, and we had no executive and no national courts. The Constitution of 1787 established the system of dual sovereignty which continues today, but not for nearly 80 years more, and only then through a civil war, was the fundamental issue of whether we were separate nations joined in a compact or one nation with separate parts finally resolved. Even today states manage their own diverse criminal justice systems separate from the national system, and subject only to some broad national constitutional rules.
The United States does not have a unitary electoral system, but fifty separate state systems. For state and local elections there are fifty separate election codes. While those systems share many similarities, they also allow significant differences on questions including whether there is a plurality or majority requirement in individual elections, access by minor party and independent candidates to the ballot, and whether voting by party is encouraged or made nearly impossible. (In my home state of Virginia the party identification of candidates for most offices is not printed on the ballot.) Again, subject only to some broad constitutional guarantees, states manage their own systems for registering voters, qualifying parties and candidates, balloting and counting votes.
While the US electoral system is state-centered as a matter of constitutional form, in practice elections are run and administered at the local level, by county and municipal governments. In most states, for instance, voters register with their local government, and state government may not even have ready access to local registration lists. These local lists, however, are used for local, state and national elections. Local officials are responsible for the entire election process in their jurisdictions: for establishing election districts, for securing, staffing and managing polling places, for acquiring voting machines (in all but two states), for designing ballots, for counting votes, adjudicating challenges and certifying results. Of course, these local officials operate under varying national and state guidelines and requirements, but they generally work for, are paid by, and receive their budgets not from state election directors but from municipal or county councils. Thus, the actual administration of elections can vary significantly even within a state, and state election officials who are formally responsible for the process may have little direct control over it.
As a result of controversies in our recent Presidential election, it is likely that these processes will be subject to greater centralization, at least up to the state level, but the fundamental administrative structure, with local officials managing local, state and national elections in their jurisdictions, is unlikely to change. The advantage of this system in a well-established democracy is that the process of self-government, even at the national level, is managed by citizen-neighbors at the local level, not by experts from the national capital or by a large and impersonal bureaucracy. The system has a natural level of transparency, provides multiple levels of oversight and permits adequate uniformity while allowing for local variations. This system also provides structural protections against fraud or machine and counting errors by limiting consequences to individual localities.
As a matter of constitutional convenience, states are also charged with conducting elections for the national legislature, subject, however, to plenary power of Congress to make any specific rules it wishes states to follow for Congressional elections (this power has been exercised quite infrequently). Thus, the same local officials, with their local lists, workers and equipment conduct our national elections along with state and local contests. For selection of the President, states are not even required to conduct elections (though all do by choice), but each state may determine any system its legislature chooses for allocating its share of "electors" who constitute the formal selection body for the presidency. All but two states allocate 100% of their electoral votes to the candidate who wins a plurality of the popular vote in that state. Thus we sometimes characterize our Presidential election as fifty concurrent state contests. It was this system that resulted in the selection of President Bush despite a victory in the popular vote by Mr. Gore.
The narrow margin in the Presidential election and controversies over the result in the state of Florida have, of course, produced much discussion of changes in the Presidential selection process and in voting practices generally. Some additional states, for instance, are considering proportional allocation of presidential electors based on the state popular vote. Most serious consideration of election reforms remains, however, at the state level. The national Congress is considering principally measures to provide financial assistance to states to purchase new voting machines, to provide technical assistance, and perhaps to provide some rules for the registration process.
Given recent events in the United Nations it may sound strange for an American to praise multi-lateralism, but I would like to suggest that you consider the American federal experience as a useful partial model for continuing international election oversight. By way of comparison, when nations enter multi-national trade agreements they make specified mutual commitments regarding internal monetary, tariff and economic policies to ensure that trade will be fair. When nations enter defense alliances, they agree upon operational and equipment standards to ensure that forces will be able to operate on a cooperative basis when necessary.
I suggested that elections are a principal means through which nations determine their destinies. Of course, nations do not work out their destinies in isolation but in the community of nations. Just as nations form economic and military ties, it is proper that they form cooperative international relationships in the human dimension, and those relationships will naturally entail certain mutual commitments regarding internal governance. These are represented in the case of the OSCE by the Copenhagen statements and other documents.
The world has been blessed in the last decade by remarkable and widespread advances in self-government and free elections. The fall of communism in Europe allowed many nations to conduct free elections for the first time in half a century or more, some for the first time ever. The fading of the threat of international communist subversion allowed and required many governments in Asia, Africa and Latin America to liberalize their governmental processes and permit genuine political competition. In most countries of the world today the fundamental right to self-government is not disputed, and generally the instrumental rights necessary to exercise genuine self-government are respected. Every citizen may vote, but only once, voters and candidates should be free from violence or threats in campaigning and voting, election administration must be transparent and vote counting fair and impartial, votes must not be bought or sold, and government officials must not accept bribes or demand payments in return for favors, protection or special treatment. These principles are widely respected and, in most countries, generally applied.
We know from ODHIRs election reports that not every nation has yet applied all of these principles fully and consistently. Inducing those countries that are lagging to fulfill their commitments and remaining vigilant against reverses or abandonment of these commitments should be the first and continuing functions of ODHIRs election activities. As sensitive and difficult as such topics can be, we must not retreat from them. Election officials from affected countries should step forward and embrace the challenges represented by such reports. For a party or leader claiming the right to rule without the consent of citizens suppresses rather than represents a people. And if we as election administrators fail to do our utmost to ensure open, free and fair elections, we betray our countries. This brings me back to my first point from the American election experience.
The United States federal system in which election administration is functionally delegated to localities provides a natural means of oversight of election processes. States are responsible, in the first instance, to see that localities exercise their functions properly and the federal government remains as the ultimate guarantor of what we call a "republican" form of government and of equal treatment of all citizens. Even though local governments have been conducting elections in the United States continuously for 250 years, this oversight is still necessary. In virtually every election there are isolated local instances of fraud or procedural irregularities. Periodically, there are more significant controversies, such as that over the vote counting on Florida in the Presidential election that had to be resolved by our Supreme Court.
We all realize, as is the case with any other crime, no country is permanently and universally free from evils such as these. Even when every OSCE nation has a secure and well-established democracy, there will remain a role for an international body to help national officials directly responsible for elections detect and prevent the inevitable if isolated instances of corruption and irregularities from becoming or creating systemic problems. When local election officials in the United States face complaints of irregularities, they are often relieved to bring in state or federal investigators to obtain an objective, professional review. The fact that such reviews are conducted by officials with no direct stake in the outcome contributes immeasurably to the confidence by citizens or aggrieved parties that allegations were fully reviewed and properly addressed, especially including those instances in which allegations were judged to be ill-founded. ODHIR teams may well be useful to perform such investigative and consultative roles even if and when regular election observation is deemed no longer necessary.
A second point of consideration from the American experience regards how long election observation may be necessary in areas that have a history of difficulties once those difficulties are largely resolved. Some states in the United States have an unfortunate history of discrimination based on race. Overtly discriminatory laws and official practices were abolished in those states through concerted action by the US Congress and successive Presidents in the 1950s and 1960s. Concerns are still occasionally raised, including even in our last election, about denial of voting rights to racial minorities, but these allegations are isolated and exceptional rather than systemic. Nonetheless, the United States still maintains two special programs of election oversight by the federal government in those states with a history of discrimination. The Voting Rights Act requires state and local officials in identified areas to submit any changes in election laws or procedures to the US Department of Justice for prior review before implementation. This reaches matters as minute as the change in the location of an individual polling place and includes actions by state legislatures and local councils to redraw their own election districts. A second program provides for federal election observers for elections in which a possibility of racial discrimination appears evident in advance.
These programs are extraordinary departures from the general American rule that states run their own elections. And they remain in force over three decades after the discriminatory practices they were intended to combat have been largely extinguished. One reason for the persistence of the special oversight mechanisms is that trust in the election systems of those states that have a history of racial discrimination will not be established fully in the lives of those who were subject to discrimination or denied fundamental rights. Thus, 40 or 50 years is not too long a horizon to contemplate election observation or other specific oversight. This is partly to prevent a recurrence of problems but more importantly to instill and maintain the trust and confidence of citizens themselves. Instilling national traditions is not a matter for one decade only.
Finally, looking ahead to a future in which all discrimination is abolished and confidence in the commitment and practice of free and fair elections by member nations is complete, a role will remain for a forum in which national election administrators can confer regarding professional practices and procedures, equipment and developments in the field. With 50 different election systems, the United States has 50 different ways to make mistakes but also 50 different laboratories in which to learn. Even though my Commission has no direct role in the administration of elections, state election officials asked us to provide a forum in which they could gather and exchange information on common technical and administrative concerns. Through this mechanism we have, for instance, established technical standards for voting machines. We are now working on management standards for elections and on recommended principles of ballot design.
In the international arena, much fine work in these areas has been done by various multi-national organizations and by NGOs. However, particularly as national election officials become more expert themselves, there will be a need for a forum in which practicing administrators, rather than technical experts, can gather to exchange information and discuss common issues. Such discussions can identify issues and needs which may become apparent in no other way.
Within the Federal Election Commissions election administration forum, for instance, state and local officials have asked us to serve as a repository for reporting about particular problems encountered in using different types of voting machines. Equipment may meet relevant technical standards but perhaps be prone to breakdown or present difficulties in particular applications. Collecting and disseminating such information can be invaluable to election administrators in preventing problems, maintaining equipment and selecting new machines. This specific function may or may not be one best performed by ODHIR, but my point is that a regular forum for election administrators to discuss practical problems with their peers is useful in itself and is quite likely to produce specific subsidiary projects.
A recognized forum of this sort can also have important effects on the professional development and status of election administrators within individual member countries. I began by speaking of the disproportion with which the world views economic as opposed to human, social or electoral matters. In addition to discussing specific topics such as international standards, election observation and mechanisms for information exchange, we must rededicate ourselves to the proposition that the human dimension is ultimately more important than the economic and military spheres. We must consider how we ourselves can best perform our greatly privileged roles in our respective nations of enabling our fellow citizens freely to realize their destiny through open and fair elections.