Organization for Security and Co-operation in Europe
Election Observation Mission to the USA November 2004
Dr. Barbara Haering
Vice-President of the Parliamentary Assembly of the OSCE,
Special Coordinator for the November 2004 Elections in the USA
John Hopkins University, November 5, 2004
1. Introduction
Thank you very much for having me here just 3 days after election-day. Yesterday we released our preliminary post-election statement and It will take us about 6 weeks to finalize the report of this OSCE Election Observation Mission. In other words, we are still in the middle of our work and therefore I very much appreciate being with you today and having the opportunity of sharing our first assessment with you.
In my capacity as Special Representative of the Chairman-in-Office of the OSCE let me underline the importance of the fact that the US Government has invited the Organization for Security and Co-operation in Europe to carry out a election observation mission in keeping with normal practice in the OSCE and in accordance with agreements made by the 55 nations who are member of the Organization.
The very first goal of the OSCE is to foster the common values and standards of democracy, human rights and the rule of law that all 55 OSCE participating states have agreed to. These common values and standards have been developed by the OSCE participating states throughout the last 30 years, starting with the so called Helsinki-Process. For obvious reasons the OSCE focuses mainly on those countries that are on their way of developing new democracies – the so called countries in transition. Nevertheless, it is decisive to look carefully also at countries where democracy has a long established tradition. This enhances the credibility of the OSCE. We therefore are grateful to the USA for their invitation. It is also a sign of the credibility of the USA within the OSCE.
2. The OSCE Election Observation Mission
The EOM has been a joint effort of the OSCE Parliamentary Assembly (OSCE PA) and the OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR). The EOM focused on specific issues including those related to the implementation of the Help America Vote Act (HAVA) in the framework of the presidential and Congressional elections.
May I summarize some key elements of our Election Observation Mission in order to give you an impression of how were working.
• Our Election Observation Mission started two months ago, looking at the election campaign, at voter registration as well as at voting systems. End of September, ODIHR has released a Need Assessment Report that also has been taken into account. From October 6 to October 9 we paid a visit to the American Election Commission, to the Federal Election Commission, to the State Department, to the Chair of the US-Helsinki-Committee – Congressman Christopher Smith, who is also a member of our Parliamentary Assembly. He was joined by Congressman Ben Cardin. We visited the International Foundation for Election Systems and we flew to Columbus Ohio to meet with the Secretary of State. We also participated in the second presidential debate in St. Louis, Missouri.
• The Parliamentary Assembly of the OSCE asked the national delegations of the Assembly to appoint short-term observers. 56 members of the Parliamentary Assembly participated in this mission. In addition to that, the ODIHR submitted a request to the Ministries of Foreign Affairs of the OSCE-participating countries. Approximately 90 OSCE observers from 34 OSCE-participating countries participated in this Election Observation Mission on election-day.
• On October 28 and 29 the observers had comprehensive briefings here in Washington. We are very grateful to all institutions and organizations that contributed to these briefings and thus share there knowledge with us. Let me just mention the FEC, the EAC, IFES as well as the representatives of the republican and the democratic election campaign. The members of the Parliamentary Assembly had additional briefings in the states they were deployed to. All briefings were none or bi-partisan.
• Observers were deployed to 12 states: California; Florida; Illinois; Maryland; Minnesota; Nevada; New Jersey; New Mexico, North Carolina; Ohio; Virginia and Washington DC. We very much appreciated the fact that all observers accepted to be deployed following the needs of the Election Observation Mission - although our deployment-plan did not meet all personal interests. However, it was our duty to develop a deployment plan that allows us to give a balanced picture of the election process.
• The debriefing took place on November 3. For logistical reasons a first debriefing took place per fax, email, phone. Observers who were able to be back in Washington on November 3 met for an additional joint debriefing in the evening.
3. Preliminary Assessment
When we introduced ourselves here in Washington in a press conference a month ago, I underlined three key elements of our Election Observation Mission:
1. The credibility of the OSCE Election Observation is based on the fact, that we foster the commitments that have been agreed to by all OSCE participating States in the Copenhagen Document from 1990.
2. Our Election Observation Mission has taken place on the invitation of the US Government.
3. Our goal and responsibility was to give a balanced picture of the election procedures in the USA.
We thereby come to the following assessment:
• OSCE-Commitments: The 2 November elections in the USA mostly met of the commitments agreed to by the 55 OSCE participating States in the Copenhagen Document of 1990.
• Election Campaign: The presidential elections were conducted in a highly competitive environment. The leading candidates enjoyed the full benefits of media. However, the Election Observation Mission took notice of the fact that only a very small proportion of the elections for the 434 congressional districts are generally considered to be competitive. In some cases this may be attributed to the way congressional boundaries are drawn – and redrawn.
• There was an exceptional public interest not only in the presidential candidates and their campaign issues but also with regard to the election process itself. Civil society played an active role, contributing substantially towards greater awareness of election issues; thus promoting voter interest and participation. The high turnout indicates the importance of this election for the electorate and the strong democratic tradition in this country.
• 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 the confidence in the electoral process.
• Access for International Observers: On election-day OSCE observers were granted access to polling stations in a number of states, sometimes only in specific counties. However, in others states, access was not possible or strictly limited. This as a result of state laws not including international observers in the statutory categories of persons permitted in polling places, or because lack of reference to international observers in state law was deemed to be an obstacle to their presence. The fact, that the OSCE had been invited by the US State Department to carry out this Election Observation Mission could not solve these problems. Congress and individual states therefore 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 non-partisan observers. This would further enhance transparency and bring state law fully in line with the United States’ international commitments.
• Election Day: Although it was not possible for our observers to access polling stations in all states, it appears that the voting and the processing of ballots generally were carried out in an orderly manner. However, significant delays at poling stations are likely to deter voters from voting and may even restrict the right to vote. It is clearly desirable that steps are taken to reduce delays in future elections.
• Electronic Voting Machines: One of the objectives of the Help America Vote Act of 2002 was the replacement of lever and punch card voting machines. The Act recommended the introduction of electronic voting machines, or DREs with a manual audit capacity. Although the older technology has been replaced in some counties, most notably in the entire state of Florida, many states have obtained a waiver extending the deadline for replacement until 1 January 2006. Moreover, 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 be desirable. 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 and the EAC in this area.
• Provisional Ballots: In order to avoid situations where eligible voters would be turned away from polling stations if their names cannot be found on the voter lists, HAVA introduced a nationwide requirement that such voters be given the option to vote with a provisional ballot. The implementation of the provisional ballot procedures is left to States and counties to determine. There are no uniform rules describing procedures for issuance, verification of voter’s eligibility and processing of provisional ballots. Deadlines for verification and processing of provisional ballots vary between 3 and 32 days.
• Absentee Voting: In some counties polling stations are only open until 6 pm. Since voting takes place on a working day and there are no provisions in the law for leave from work for the purpose of voting, there is a heavy time constraint on voters. This may be one of the explanations for the high number of absentee ballots. An estimated 20% of voters have been using absentee voting. Furthermore, an estimated 3.7 million absentee voters reside abroad, in addition to an estimated 1.4 million military personnel posted overseas. However, there are no uniform standards for processing postal / absentee ballots. The deadlines for acceptance of such votes vary from State to State. One of the features of this system is that in some States, voters residing abroad have an option to waive the secrecy of their vote, and fax their marked ballots from abroad. While such a provision enables participation by voters who otherwise may not be able to take part, any compromise in the secrecy of the ballot is against fundamental electoral standards. Additionally, there have been reports of large numbers of absentee ballots that did not reach the voters.
• Election Reform: The Election Observation Mission took notice that the USA are going through a crucial phase of election reform. For the first time a federal law is providing nationwide rules and regulations for election procedures. Unfortunately, the requirements of HAVA have not been fully implemented yet. Moreover, we believe, US election reforms will have to go beyond HAVA. Nationwide voter registration rules will be needed as well as national standards for voting roll purges. Clearer rules have to be developed for the handling of provisional ballots, for ID rules as well as for military and overseas voting. And: As already mentioned: Congress and individual states therefore should consider introducing legal provisions allowing unimpeded access to all stages of the election process for international observers who have been invited by the US Government. Thus, democracy will always remain a work in progress.
Let me end with a personal foot note: I was impressed by the passion of the two presidential campaigns and by the commitment of campaign volunteers on the ground up to the very last minute of this campaign. And I was impressed by the patience and concentration of voters on election-day. Quite some lessons learned to take back to Switzerland.
Washington, November 5, 2004/BH
Annex: Copenhagen Document (extracts)
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
(7.1) - 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;
(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;
(7.5) - respect the right of citizens to seek political or public office, individually or as representatives of political parties or organizations, without discrimination;
(7.6) - respect the right of individuals and groups to establish, in full freedom, their own political parties or other political organizations and provide such political parties and organizations with the necessary legal guarantees to enable them to compete with each other on a basis of equal treatment before the law and by the authorities;
(7.7) - ensure that law and public policy work to permit political campaigning to be conducted in a fair and free atmosphere in which neither administrative action, violence nor intimidation bars the parties and the candidates from freely presenting their views and qualifications, or prevents the voters from learning and discussing them or from casting their vote free of fear of retribution;
(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.
(8) The participating States consider that the presence of observers, both foreign and domestic, can enhance the electoral process for States in which elections are taking place. They therefore invite observers from any other CSCE participating States and any appropriate private institutions and organizations who may wish to do so to observe the course of their national election proceedings, to the extent permitted by law. They will also endeavour to facilitate similar access for election proceedings held below the national level. Such observers will undertake not to interfere in the electoral proceedings.