Reply #64: Ho. From an international perspective,

[EuroObserver]

I made an effort to separate the wheat from the chaff in the OSCE observers' preliminary findings. Not exactly what one would call a clean bill of health...

Hope this isn´t a dupe and the html span formatting comes through... + apologies for length of post.

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ORGANIZATION FOR SECURITY AND CO-OPERATION IN EUROPE ELECTION OBSERVATION MISSION (EOM)

PRELIMINARY FINDINGS

Overview

The 2 November elections in the United States mostly met the commitments agreed to by the 55 OSCE participating States in the Copenhagen Document of 1990 ... However, a number of significant issues were brought to theattention of the EOM as set out below.

HAVA ... was ... a political compromise and left a number of questions to be addressed in its implementation. This in turn created new problems, such as varying interpretations of the rules on provisional balloting... It is to be hoped that future reforms will further enhance consistency regarding the following: voter registration criteria and procedures; rules for issuing, verifying and counting provisional ballots; voter identification requirements; absentee voting by eligible citizens living abroad.

The performance of state and county election officials – mostly nominated by political parties ... the way in which election administrators are appointed may raise questions of possible conflict of interest, in particular when election officials run for office or act as campaign managers.

Allegations of electoral fraud and voter suppression, primarily among minorities, were widely reported and presented to the EOM in the pre-election period. The EOM is concerned that the widespread nature of these allegations may undermine confidence in the electoral process. A coherent approach to such issues is highly desirable, addressing both fraud prevention and ensuring full enfranchisement. Suffrage is best protected when both election administrators and voters themselves take responsibility for ensuring that voter lists are accurately and well-maintained.

OSCE observers were able to assess aspects of the preelection environment and were granted access to polling stations in a number of states, sometimes only in specific counties. However, in other states, access was not possible or was limited... Congress and individual states should consider introducing legal provisions allowing unimpeded access to all stages of the election process for international observers who have been invited to observe the elections by the US Government. Similar provisions should extend to domestic nonpartisan observers. This would further enhance transparency and bring state law fully in line with the United States’ international commitments.

Election day proceeded in an orderly and peaceful manner. There were, however, some concerns, for instance in relation to the use of provisional ballots and occasional problems with DRE (direct recording electronic) machines. Very long queues were reported in many areas, with polling stations lacking the capacity to ensure a reasonably prompt throughput of voters. Delays may have been exacerbated by the fact that election day voting took place during working hours. Significant delays at the polling station are likely to deter some voters from voting and may restrict the right to vote.

Background and electoral framework

The legal framework for elections comprised a number of federal acts providing minimum standards for the conduct of elections, individual states’ election laws and county regulations. Most aspects of the election, especially those relating to election day procedures, were governed by state law, with further significant variations occurring from one county to another within states. This high degree of decentralization fosters widely differing approaches to the conduct of elections across the country.

Pre-election Findings

There were allegations of voter fraud which focused mainly on the accuracy of the voter lists and the need to ensure that votes were only cast by those entitled to do so. These included references to voting by persons ineligible to cast a ballot, multiple voting and unlawful voting by ex-felons. Such concerns were addressed in part by the use of challenge procedures, which allowed party representatives, voters and poll workers to confront voters directly in the polling station and challenge their eligibility to vote. However, the EOM is concerned that even the prospect of such challenges might have the effect of deterring participation by legitimate voters. Allegations about voter disenfranchisement and so-called voter suppression were also widely aired. It was claimed that such practices included non-processing of voter registration applications, the improper removal of eligible voters from voter lists, harassment and intimidation of voters. While recognizing the seriousness of the above allegations, the EOM was not provided with first-hand evidence to substantiate them or to demonstrate that such practices were widespread or systematic.

Absentee and early voting was strongly encouraged by the major political parties, with considerable effect... The EOM noted that there are no uniform standards for processing absentee ballots. It was also aware that in some states absentee voters abroad were permitted to send their ballots by fax, having signed a secrecy waiver. While this practice makes it easier for voters abroad to cast their vote, voting by fax compromises the secrecy of the ballot.

In a number of states, citizens who have been convicted of any felony (a criminal offence more serious than a misdemeanor) are deprived of their voting rights, in some states for life. In this respect the restriction on the right to vote is not made proportionate to the seriousness of the criminal offence. In any event it is desirable that voter qualifications for federal elections are uniform. Otherwise, voters in different states do not enjoy equal suffrage.

One of HAVA’s central objectives was the replacement of lever and punch card voting machines... Given that the current federal standards for election technology are not mandatory, there are no uniform certification procedures. This may account in part for the reported distrust of DREs, especially touch screen machines, a distrust compounded by the decertification of certain DREs in California. In the absence of uniform certification standards, safeguards which do not entirely depend on electronic data, would enhance public confidence in the DREs. The most obvious solution would be the prompt introduction of a paper audit trail, which appears to have been successfully implemented in certain areas. Consideration could also be given to enhancing the role of the national certification agency (the National Institute for Standards and Technology) and the EAC in this area.

Provisional ballots have been introduced nationwide except in those states with sameday voter registration or no voter registration at all. Under this procedure, voters who claim to be registered but whose names do not appear on the polling station voter lists are permitted to cast a provisional ballot. Such ballots are only counted if a voter’s eligibility is subsequently verified by the polling officials. While this innovation was intended to ensure enfranchisement of voters whose names were improperly omitted from the voter register, its introduction has created problems of its own. In particular, the statutory text is ambiguous as to whether the voter must cast the ballot in his/her allocated precinct for the provisional ballot to be counted. The statutory provisions have been litigated in a number of states and have been interpreted differently by different courts. It is highly desirable that this ambiguity is resolved in a consistent and timely manner. Additionally, deadlines for verification and counting of provisional ballots vary widely from state to state and have the potential to delay announcement of final results at the federal level.

Election Day Findings

Election day was characterized by very high turnout, resulting in long queues and pressure on poll workers at some polling stations. It seems likely that protracted waiting periods may have deterred or prevented some voters from participating in the election, particularly those who were working on 2 November and were not given time off by their employers.

Poll workers displayed varying levels of knowledge on correct procedures. It was not clear that poll workers had generally received sufficient training to perform their functions.

OSCE observers were granted access to polling stations in a number of states. Access was sometimes limited to specific counties or to specific polling stations within a particular county. In those places where access was granted, OSCE observers noted that the key elements of HAVA were being implemented. There were, however, a number of concerns. Specifically, there was considerable confusion and varying approaches from one state to another regarding the use of provisional ballots. The prompt release of an authoritative record of the number of provisional ballots cast would contribute to clarity in announcing results. Occasional faults and breakdowns of DRE machines sometimes resulted in delays for voters while election officials sought technical support or advice. Observers also noted that some voters, mostly but not exclusively the elderly, had difficulties with newer voting technologies, necessitating assistance by poll workers.

Some concerns were expressed by observers regarding the secrecy of the vote due to the positioning of the voting machines in polling stations. Political party observers were present in many polling stations, although domestic non-partisan observers often had no legal right to such access.

Annex I: Copenhagen Document (extracts) - Document of the Copenhagen Meeting of the Conference on the Human Dimension of the Conference on Security and Co-operation in Europe, 29 June 1990

Key provisions on international election standards:

(6) The participating States declare that the will of the people, freely and fairly expressed through periodic and genuine elections, is the basis of the authority and legitimacy of all government. The participating States will accordingly respect the right of their citizens to take part in the governing of their country, either directly or through representatives freely chosen by them through fair electoral processes. They recognize their responsibility to defend and protect, in accordance with their laws, their international human rights obligations and their international commitments, the democratic order freely established through the will of the people against the activities of persons, groups or organizations that engage in or refuse to renounce terrorism or violence aimed at the overthrow of that order or of that of another participating State.

(7) To ensure that the will of the people serves as the basis of the authority of government, the participating States will

(7.3) - guarantee universal and equal suffrage to adult citizens;

(7.4) - ensure 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;

(7.8) - provide that no legal or administrative obstacle stands in the way of unimpeded access to the media on a non-discriminatory basis for all political groupings and individuals wishing to participate in the electoral process;

(7.9) - ensure that candidates who obtain the necessary number of votes required by law are duly installed in office and are permitted to remain in office until their term expires or is otherwise brought to an end in a manner that is regulated by law in conformity with democratic parliamentary and constitutional procedures.