Questions and Answers: US Elections and Human Rights

 

 

International human rights law offers useful standards for protecting fundamental human rights during elections. Relevant law can be found in the International Covenant on Civil and Political Rights, ratified by the United States in 1992; the International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994; and the Universal Declaration of Human Rights, which the United States played an important role in drafting and is considered reflective of customary international law. Many of these provisions are reflected in US constitutional, federal, and state law.

International human rights law “does not impose any particular electoral system,” whether highly centrally controlled or significantly decentralized, as in the US. International human rights law sets out voting rights and non-discrimination obligations that are binding on the national, state, and local governments in the US. In its general comment on the right to vote, the United Nations Human Rights Committee, the independent expert committee that provides authoritative interpretations of the International Covenant on Civil and Political Rights, stated that governments are obligated to take “effective measures to ensure that all persons entitled to vote are able to exercise that right.”

The decentralized administration of elections in the US means that no state administers elections in exactly the same way as another state. Each US state has a chief election official who has ultimate authority over elections in the state, but there is variety in which officials hold this power. For example, many states rely on their secretaries of state, an elected role, as their chief election official. In the elections to be held on November 8, 2022, 27 states will vote for secretaries of state. Other states require governors to appoint top election officials, and still others use appointed bipartisan election commissions. These top officials are responsible for issues like ensuring election laws are followed, administering statewide voter registration, and certifying voting equipment and local election officials.

Moving beyond such macro-level tasks handled by top officials, the day-to-day election administration in the US is carried out at the county or municipal level by a single individual, a board or commission of elections, or a combination of the two. The US has more than 10,000 election administration jurisdictions. When election duties are divided, the most common division of duties is between voter registration and the actual administration of elections, but there is enormous variety.

Election workers of all kinds have come under increased scrutiny since the 2020 election and the perpetuation of the baseless claims by former President Donald Trump and his supporters that there was a broad conspiracy to deprive him of the presidency in 2020. In some states, armed protesters stood outside ballot tabulation centers in the days after the 2020 elections. Election workers face harassment, even death threats. In 2021, the news wire Reuters documented 100 cases of threats of death or violence made to election workers and officials, which it saw as “part of an unprecedented campaign of intimidation inspired by Trump’s false claims that the 2020 election was stolen.”

In June 2021, the US Department of Justice (DOJ), in close collaboration with the US Federal Bureau of Investigation (FBI), established a task force focused on threats to election workers. In August 2022, the task force reported that it had reviewed over 1,000 reports of hostile or harassing incidents. Disturbingly, it found that approximately 11 percent of these met the threshold for a federal criminal investigation. According to the task force, 58 percent of these were in states that underwent 2020 post-election lawsuits, recounts, and audits.

In October 2022, the FBI issued a broad statement of caution about threats to election workers ahead of the November elections. Several states also passed legislation or otherwise took steps to protect election workers. For example, the state of Georgia debuted a text-alert system for election workers to report threats at polling locations.

Some states, though, have passed laws that threaten election workers with criminal prosecution for doing their work. In 2021, Texas passed a law, S.B. 1, which erected barriers to early voting and voting by mail and reduced access to polling places. The Brennan Center for Justice, a nonprofit organization, called this measure “one of the cruelest and most aggressive restrictive voting bills to become law.” A UN independent human rights expert detailed some facets of this omnibus legislation, including its impact on election workers: “It makes it harder for those who face language access barriers, mainly minorities, to get help to cast their ballots, but also restricts the ability of election workers to stop harassment disproportionally targeting minorities by partisan poll watchers….”

 

US election officials should effectively communicate about voting procedures, make various voting options readily available, and adopt additional measures as needed. Election officials in the US should counter any misinformation about polling procedures or locations promptly, consistently, accurately, and using languages and methods of communication designed to reach all eligible voters.

Authorities throughout the US should ensure that voting procedures do not have discriminatory effects, particularly on historically marginalized racial and ethnic groups, Indigenous people, women, and people living with disabilities, among others. The authorities should end the disenfranchisement of people with criminal legal system contacts, and those who may owe fines and fees as a result, ensure voting rights in jails, and review all automatic felony disenfranchisement laws, which have had a disproportionate impact on Black and brown people. Voting rights should be restored and respected for people under probation or parole supervision.

All states should follow the lead of those that have expanded voter protection, including initiatives to increase voting by mail, to protect election workers, and to ease voter registration. Officials should offer a range of in-person and other voting options that would ensure that all eligible voters are able to exercise their right to vote. Put simply, the obligation of any legitimate government is to make voting as easy and accessible as possible for all eligible voters.

In practice, state laws and election officials often make it more difficult for certain people to vote in the US with particularly pernicious laws, policies, and practices targeted to limit the power of Black voters. Some state actors continue to find ways to restrict voting, even subverting the will of the people to expand it. For example, voters in Florida approved a law to automatically restore voting rights to about 1.4 million disenfranchised voters in 2018. In 2019, the Florida legislature passed a new law prohibiting the newly re-enfranchised (disproportionately people of color) from voting until they paid all court-related debt, which is often unjustly and discriminatorily imposed, can amount to many thousands of dollars and can act effectively as a lifetime bar.

In 2020, one expert involved in voter registration told Human Rights Watch that the state faces “an administrative nightmare for returning citizens. There is so much confusion. People want to know, ‘is it okay to register?’ There is a lot of fear and confusion over if you’re going to get into trouble. It’s frankly a mess.” This reflection was prescient. In August 2022, the Office of Election Crimes and Security created by Florida Governor Ron DeSantis announced the arrests of 17 people (out of 11.1 million voters in the 2020 election). Police camera footage released from two of these arrests exposed how confusing voter eligibility was in practice for some people, and some activists fear these arrests will intimidate eligible voters from exercising their right to vote.

The US has a long history of discrimination against Black and brown people in their ability to exercise the right to vote. Even after the enactment of the US federal Voting Rights Act in 1965, Black, Latinx, and Native American citizens experienced many obstacles to voting. Changes by some states in recent years, including those enabled by a 2013 US Supreme Court case, Shelby County v. Holder, which eviscerated federal oversight under the act, have made voting harder, not easier. The court’s 2021 ruling in Brnovich v. Democratic National Committee further limited the protections in the Voting Rights Act against racial discrimination. The Covid-19 pandemic has exacerbated these problems, as have the baseless claims regarding election fraud in the 2020 presidential elections. In 2021 and 2022, several states passed laws that sought to limit who may vote and which votes are counted, as well as opening the door to partisan actors interfering with elections. These restrictions on the right to vote disproportionately impacted Black, Indigenous, and Latinx people. The US Supreme Court is considering two voting rights case in its 2022-2023 term. Moore v. Harper threatens to weaken remedies for voting rights violations connected to congressional voting maps and Merrill v. Milligan may further erode the protections of the Voting Rights Act. Other restrictions imposed in some states may enable criminal prosecutions of election administrators, which could potentially destabilize a largely nonpartisan and previously noncontroversial function of government.

There are many systemic obstacles to voting. For example, address changes because of evictions and housing transitions can make registration difficult or impossible, some of which have been exacerbated by the Covid-19 pandemic. People often cannot secure time off from work to vote, have caregiving responsibilities, or have no access to safe or affordable transport, including for people living with disabilities or older people.

In August 2022, the UN Committee on the Elimination of Racial Discrimination (CERD), a body tasked with monitoring implementation of the Convention on the Elimination of Racial Discrimination, in its assessment of the US situation noted that it is “concerned about the increase in legislative measures and practices that effectively constrain the exercise of the right to vote with a disproportionate impact on people of African descent, Indigenous Peoples, persons of Hispanic/Latino origin and other ethnic minorities.”

 

While it is the responsibility of each state’s election authorities to ensure the integrity of the elections under their jurisdiction, there is a long history of US civil society groups playing a role in ensuring the right to vote without intimidation or discrimination. Some of these groups are partisan, with the primary examples being individuals appointed by the Democratic and Republican National Committees to observe at polling places. However, there are many legal, organizing, and other types of civil society groups that make up a diverse and robust ecosystem working to protect and advance the right to vote in the US. It is nearly impossible to list all of the organizations engaged protecting the right to vote and integrity of elections, but some of the national independent or nonpartisan organizations include: the American Civil Liberties Union (ACLU), Asian and Pacific Islander American Vote (APIAVote), Arab American Institute, Asian Americans Advancing Justice, Black Voters Matter, the Brennan Center for Justice, Color of Change, Common Cause, Democracy Matters, the Lawyers’ Committee for Civil Rights Under Law, the Leadership Conference for Civil and Human Rights, the League of Women Voters, NAACP Legal Defense Fund, National Association of Latino Elected Officials (NALEO) Educational Fund, NAACP, Rock the Vote, Vote.org, and Voto Latino. Civil society operating at the state and local levels are on the frontline of protecting the integrity of US elections. These organizations help register voters, inform them about their rights and how to vote, and engage with local election officials when there are problems. Nonpartisan organizations such as New Georgia Project or MOVE Texas build electoral power among populations that have been targeted by voter suppression efforts or otherwise marginalized from the electoral system.

Each US state has its own rules governing the use of election observers. Only 34 US states and the District of Columbia have laws explicitly allowing and regulating the use of nonpartisan election observers. However, impartial, nonpartisan observers play an important role in ensuring that elections are free and fair. Such observers can add to the credibility of elections by recognizing and highlighting procedures and practices that help protect the right to vote, as well as identifying problems. International election observers from the Organization for Security and Co-operation in Europe (OSCE), the Organization of American States (OAS), and from nongovernmental organizations such as the Carter Center have observed elections internationally, and the OSCE and the OAS have observed elections inside the United States. As of October 2022, the OSCE had deployed observers to monitor the November 8 US general election.

Civil society and nonpartisan observers play a significant role in a healthy democracy. The UN Human Rights Council has recognized the “crucial importance of the active involvement of civil society, at all levels, in promoting good governance, including through transparency and accountability, which is indispensable for building peaceful, prosperous and democratic societies.” It is a human rights imperative that federal, state, and local officials “create and maintain a safe and enabling environment in which civil society can operate free from hinderance and insecurity.” Some state lawmakers, however, have passed laws that chill civil society involvement to register or otherwise support voters, including laws with steep fines and even criminal penalties.

 

In accordance with international standards, US election officials should provide prompt review, appeal, and a remedy for voting rights violations. International law requires an effective remedy, a solution or “cure”, for violating someone’s human rights, including voting rights violations. Voters who report that their rights have been denied or violated should have a prompt, fair hearing and appeal, and the right to a speedy and effective solution. Such review should ensure voters the opportunity to correct routine issues like forgetting to sign their ballot envelope or using a different signature style than the one on record. An effective solution would allow voters to exercise their voting rights within the election timeframe so that their vote can be counted. Unfortunately, in some jurisdictions in the US, the rules governing voting have become unnecessarily complex and have made it more likely that individuals will need to seek to fix their ballots, slowing the work of elections administrators and increasing voter confusion and frustration.

Under duly ratified international treaties, the judiciary serves as an effective means of assuring effective remedies to violations of rights protected by human rights treaties. The US Supreme Court, in the Moore v. Harper case is considering whether to preserve effective remedies for its citizens to prevent against violations related to discriminatory congressional map drawing. The right to remedy is crucial in protecting the voting rights of all citizens, including against discrimination based on race, religion, or other protected class.

 

US citizens have the right to vote for candidates of their choice and to have that vote counted. Similarly, international human rights law recognizes that government derives its authority from the “will of the people.” An increase in the number of people voting by mail, changes made to voting procedures and increased concerns, regardless of their validity, about voter fraud mean it may take longer than in previous elections for local election officials in the over 10,000 US election jurisdictions to generate accurate tallies of results. Officials at all levels should ensure that all valid ballots are counted, keeping the rights of voters, and ascertaining the will of all voters at the center of efforts to resolve any controversy. Officials should also actively refute misinformation.

Elections should occur within an established legal framework that is conducive to free and fair elections. In general, laws governing elections should not be changed immediately prior to or in the midst of elections or vote counting; any legal adjustments that may be required due to unforeseen events should prioritize ensuring the effective exercise of voting rights and the counting of all votes.

 

Officials at all levels and candidates for office should publicly condemn groups and individuals seeking to intimidate, harass, incite, or engage in violence against voters and other members of the public, including on the basis of race, color, national origin, gender, gender identity, sexual orientation, religion, and disability. They should seek to prevent such intimidation and violence, including near polling places and during protests. Law enforcement authorities should promptly and thoroughly investigate and appropriately prosecute offenses (including violence and threats of violence) against candidates, elected officials, voters, election officials, and others. When local laws and policies may lead to confusion for voters and for law enforcement and courts charged with enforcing and upholding the law, the primacy of the right to vote should inform all government actors.

Federal and state authorities should immediately investigate and address credible allegations or evidence of collusion by local law enforcement officials, police, or members of the armed forces, including the National Guard, with white supremacist and other extremist groups. Implicated officials should be put on leave pending appropriate disciplinary measures or prosecution.

Government agencies and officials, as well as others who effectively wield governmental authority or exercise effective control over territory and population, have a duty not to engage in any speech advocating violence, discrimination, or hostility toward any individual or social group.

 

Government officials should ensure access to accurate electoral information. Government officials should not make, sponsor, encourage, or further disseminate information about the electoral process that they know to be false, or which demonstrates a reckless disregard for verifiable information. They should disseminate accessible, reliable, and trustworthy information about the electoral process.

 

Internet intermediaries, like social media platforms, have a responsibility to respect human rights and mitigate harm, such as incitement to violence, resulting from their business practices. Where they take action to restrict third-party content (such as deletion or moderation) that goes beyond legal requirements in order to, for example, preserve the integrity of the electoral process, they should adopt clear, pre-determined policies governing those actions. Those policies should be based on objectively justifiable criteria that can be both easily accessed and understood, with clear information about how they are enforced. Internet intermediaries should implement their policies in a fair, unbiased, and consistent manner to effectively protect the right to vote and to accurate electoral information, while providing users access to appeal and remedy for moderation decisions.

Voter intimidation is illegal under US federal and state law. International human rights law also prohibits voter intimidation and requires authorities to protect the right to vote from interference through threats, harassment, or violence. While the human right to freedom of expression needs to be protected during elections, international human rights law also recognizes that this right can be restricted if necessary and proportionate to protect the rights of others, including the right to vote. This is particularly relevant in the immediate vicinity of and inside polling stations.

In the US, state (not federal) law enforcement personnel trained in their law enforcement duty to protect the right to vote and to ensure non-discrimination in voting may be present at polling places, in accordance with state or municipal law. They include armed and uniformed police, sheriffs, or state national guard personnel. Laws vary widely on this issue throughout the US, however. For example, in Pennsylvania and California police are prohibited from showing up at polls unless there in their personal capacity to vote or unless invited by election authorities. By contrast, New York state law requires the presence of “at least one police officer” at polls. Depending therefore on the governing state or local law in the US, law enforcement presence at polls may be legal, but such officers should be focused on protecting the right to vote and protecting public safety, and their role should be neutral, impartial, and disengaged from the political process to comport with international human rights standards.

The presence of armed and uniformed law enforcement personnel may be required to protect against intimidation of voters by private actors, but election authorities and law enforcement personnel should balance this important function against the fact that their presence can intimidate citizens from exercising their fundamental right to vote. There is a troubling history of the use of off-duty armed police officers wearing official-looking uniforms to intimidate voters, culminating in New Jersey in 1981 as part of the Republican National Committee’s National Ballot Security Task Force. A resulting lawsuit led to a court order that restricted the Republic National Committee from certain “ballot security” initiatives, until a consent decree lifted these restrictions in 2017. Today, some citizens harbor similar fears of intimidation or that the presence of law enforcement may escalate violence. Others may fear that they will risk arrest for unpaid fines and fees or warrants that are completely unrelated to their fundamental right to vote. A poll conducted in the weeks before the 2020 election found that one-third of Black respondents, 29 percent of Asian Americans, and 24 percent of Hispanic Americans worry they could face arrest at the polls, compared with just 14 percent of white respondents.

There is no rational reason for active-duty immigration enforcement personnel to be deployed inside or near polling places, and therefore, their presence does not comport with international human rights law. The active deployment of federal military or law enforcement personnel from any federal law enforcement agency (including immigration enforcement) also violates US federal law.

Under some state and local laws, private individuals in the US may be legally permitted to carry weapons inside polling places. According to Giffords Law Center, a national public interest law center, the political violence at the US Capitol on January 6, 2021 has helped normalize armed intimidation, thereby “escalating an unprecedented threat to American democratic institutions and participation.” The Giffords Law Center noted that six states and the District of Columbia explicitly prohibit guns at polling locations. Four additional states prohibit concealed firearms at the polls. Guns may also be prohibited when polling locations are in schools and other types of public property where firearms are not permitted. Additionally, even where guns are not prohibited outright, nearly all 50 states have laws that prohibit using firearms to intimidate others.

Thus, in accordance with international human rights law, even when permitted under state law, private individuals carrying guns should be prevented from intimidating other voters in accordance with US and human rights law. Open communication and clear roles between law enforcement and election authorities are necessary, together with accountability, to ensure a non-intimidating environment at the polls. The failure to ensure a non-intimidating polling location due to any of the above factors is likely to both violate the right to vote and to constitute racial discrimination under international human rights law.

 

Democratic elections require an environment of respect for and enjoyment of human rights without arbitrary or unreasonable restrictions. Key human rights, whether exercised online or offline, that should be protected during elections include, but are not limited to, freedom of expression and access to information held by public bodies. One key component of these human rights is media freedom. The UN special rapporteur on the right to freedom of opinion and expression has issued detailed guidance on how to ensure freedom of opinion, expression, and access to information during elections.

The special rapporteur emphasizes that, besides promoting an adequate environment for the work of the media during elections, government officials should protect freedom of expression during electoral processes by promoting pluralism (to secure a diverse electoral process which is hospitable to candidates and parties from across the political spectrum), transparency (in political and electoral financing and in means and methods of political polling, for example), and accountability (to ensure laws and regulations are enforced and abuses of power are rectified, and to combat impunity for attacks against journalists).

https://www.hrw.org/news/2022/10/26/questions-and-answers-us-elections-and-human-rights