OSCE Observers Release Report on November 8 US Election

[Screenshot image via osce]

The November 8 election in the United States was the latest to be the subject of observation by a delegation from the Organization for the Security and Cooperation in Europe (OSCE) through its Office for Democratic Institutions and Human Rights (ODIHR). The report for that mission was released yesterday – and while much of the contents are familiar to anyone who follows election administration in the US, it’s still an interesting read because it gives an election-focused but outside view of our nation’s system. A few highlights:

Executive Summary

The legal framework is highly decentralized and complex, with significant variation between states. A number of previous OSCE/ODIHR recommendations remain unaddressed in the law and certain deficiencies in the legal framework persist, such as the disenfranchisement of citizens living in various territories, restrictions on the voting rights of convicted criminals, and infringements on secrecy of the ballot. In 2013, provisions of the Voting Rights Act were struck down, removing a timely and effective safeguard for the protection of rights for racial and linguistic minorities. A wide range of electoral litigation remained unresolved before election day, particularly with respect to voter registration and voter identification.

Individual states are responsible for administering elections with duties often delegated to some 10,500 jurisdictions across the country. The elections were administered by competent and committed staff and enjoyed broad public confidence. The work of the Election Assistance Commission (EAC) had a positive impact for state and county officials, enabling the exchange of best practices and providing standards for New Voting Technologies. A number of technical recommendations made by previous OSCE/ODIHR missions, as well as the 2014 Presidential Commission on Election Administration, were addressed.

Voter registration is active and implemented at the state level. Various initiatives have been undertaken to improve voter list accuracy and inclusiveness, often with bipartisan support. These included online registration, as well as inter-state projects to identify potential duplicate records and inaccuracies. Notwithstanding these measures, more than an estimated 35 million eligible voters were not registered for these elections, underscoring the need for continued efforts to enhance voter registration, particularly among marginalized communities.

Voter identification rules are politically divisive and vary across the states, with 32 states requiring identification, of which 16 require photo identification. Provisional ballots are generally available if a voter does not have sufficient identification; however, eligibility is established only after the close of the polls, at times requiring additional information from the voter. A high volume of litigation regarding voter identification continued up to election day, generating confusion among voters and election officials regarding the application of the rules. Efforts to ensure the integrity of the vote are important, but should not lead to the disenfranchisement of eligible voters. 

Most state law is silent on observation, leaving discretion to election officials. Restrictions on observation of early voting and election day are in place in 17 states. Citizen observers and party representatives were active and widespread throughout the country, providing an added layer of transparency and confidence in the election process.

More than one-third of voters are estimated to have cast their vote before election day, either in person or by post, including citizens abroad. Early voting enjoys broad public trust and a number of measures were implemented to ensure security. However, secrecy of the vote was not always guaranteed for postal voting and out-of-country voting by electronic means, contrary to OSCE commitments.

Election day procedures were generally followed and assessed positively by the [international election observation mission] observers [(IEOM)]. In a number of locations throughout the country long queues to access polling stations were observed. In numerous instances, multiple citizens intending to vote at a polling station were not found on the voter list, underlining systemic concerns with voter registration. Secrecy of the vote was not always guaranteed, generally where voters were not provided with ballot sleeves when using ballot scanners. Despite widespread concerns that voters would be intimidated at the polls, no serious incidents were observed by the IEOM or were reported to it. Polling officials were mainly co-operative, even in those areas that do not clearly provide for international observation. IEOM observers could not, however, fully observe procedures in 73 polling stations across 19 states.

Election Administration

There is no federal body that oversees the entire electoral process and individual states are responsible for administering elections, with duties often delegated to some 10,500 jurisdictions across the country. An estimated 180,000 polling stations were established for these elections.

The composition of election administration bodies at the state level varies widely. In 22 states a single individual is in charge of administering elections, 10 states use a board of elections, and 18 states divide administration duties between two or more offices. In 24 states the secretary of state serves as the chief election official, while other states appoint their chief election official. Many decisions are made by lower-level election officials at the jurisdiction level. Chief election officials of states and counties are often elected as party candidates, at times in elections they themselves administered, raising possible conflicts of interest. Despite their possible party affiliation, most OSCE/ODIHR EOM interlocutors generally expressed confidence in the impartiality of election administrators…

Election staff at both the state and local level were competent and committed, with many having several years of experience. However, some jurisdictions had problems recruiting poll workers. Some county election officials reported a lack of resources that affected the recruitment and training of polling officials. In some jurisdictions where one party is dominant, establishing bipartisan commissions was difficult. In various parts of the country the number of polling stations was reduced, increasing the distances voters had to travel to vote. This often had a disproportionate impact on marginalized groups, including Native Americans. Training of poll workers was conducted by state or county boards, either in-person or online. Women were generally well represented amongst the electoral staff, including in decision-making positions …

The bipartisan Election Assistance Commission (EAC) is a federal body that provides guidance on meeting HAVA requirements and serves as a clearinghouse for information about the election administration. After functioning without commissioners since 2011, three commissioners were appointed in January 2015, making the EAC operational and addressing a prior OSCE/ODIHR recommendation. The work of the EAC had a positive impact for state and county officials, providing a valuable exchange of best practices, including guidance regarding [new voting technologies], online voter registration, effective management of polling stations, and early voting. In doing so, the EAC played a key role in promoting efficient election administration and addressing practical recommendations made by the 2014 Presidential Commission on Election Administration. [citations omitted]

Voter Registration

Voter registration is active and implemented at the state level, with no centralized register. Voters could register in person, by post or through an authorized third party. Minimum standards are provided by federal legislation. States are required to co-ordinate and match their records with other state and federal databases. State-wide voter registration databases were accessible to voters to check and update their status. All states allowed registration until at least 9 October, 11 states and the District of Columbia allowed election day registration, and North Dakota did not require any registration. Voters could also register by post, using a federal form maintained by the EAC. Applications required a signed statement to confirm citizenship, under penalty of perjury. HAVA requires first-time voters that register by post to prove their identity by either providing specific information that matches to a government database or a piece of identification.

Various state and civil initiatives were undertaken to improve voter list accuracy and inclusiveness, often with bipartisan support. A majority of states implemented online voter registration, which according to a number of OSCE/ODIHR EOM interlocutors, led to increased accuracy, efficiency, and cost savings. In the run-up to these elections, online registration systems in Illinois and Arizona were hacked, putting voters personal information at risk and the integrity of voter registers. The Department of Homeland Security (DHS) reported to the OSCE/ODIHR EOM that in 20 additional states there were unsuccessful hacking attempts on voter registration systems. The DHS offered cyber security assistance to all states, of which 33 and some additional jurisdictions accepted…

Five states authorised different types of automatic registration to further improve voter registers. An increased number of states also participated in two different inter-state projects to identify duplicate records and inaccuracies. The Electronic Registration Information Center (ERIC) included 20 states and the District of Columbia, and the Interstate Voter Cross-Check Program (IVCP) includes some 25 states. While IVCP is limited to providing lists of suspected duplicates to participating states, ERIC provides comprehensive assistance to identify various types of inaccurate voter list entries. States participating in ERIC reported improvements to the OSCE/ODIHR EOM, including the removal of duplicate entries of voters who change their residence between states and deceased persons, as well as generating opportunities for registration for persons identified as unregistered. If a potential duplicate record is identified, most states require that an attempt is made to contact the individuals concerned before they are removed from the voter list. These state-led initiatives to improve the accuracy of voter lists are in line with previous OSCE/ODIHR recommendations to facilitate voter registration. [citations omitted]

Early Voting

It is estimated that more than one-third of all voters cast their vote prior to election day, either in person or by post. In general, OSCE/ODIHR EOM interlocutors expressed trust in election authorities to administer early voting in an impartial and secure manner. In jurisdictions observed by the OSCE/ODIHR EOM, adequate measures were in place to prevent unauthorized access to ballots cast early, including overnight storage and the use of ballot box seals.

All states provided some voters with the possibility of postal voting, with 27 states and the District of Columbia not requiring voters to provide a reason for their request. Oregon and Washington conducted general elections entirely by post and Colorado was mainly conducted by post. In a positive effort to address potential issues of loss, misdirection, or late delivery of postal ballots, the US Postal Service (USPS) produced guidance for election administrators related to election mail design and procedures.Some states, however, did not provide voters with a secrecy envelope, which meant that the ballot was returned in a single envelope that contained voter information, potentially violating the secrecy of vote as provided by paragraph 7.4 of the 1990 OSCE Copenhagen Document…

In-person early voting was available in 34 states and the District of Columbia. In Massachusetts, early voting in person was introduced for the first time, while in four states, authorities recently introduced legislation to limit the possibilities for early in-person voting. The early voting period ranged from 3 to 45 days, depending on the state. During early voting, long queues were reported in some locations, often attributed to a limited number of polling locations and opening hours, as well as complex ballots with numerous races to consider. [citations omitted]

Voting Technology

New Voting Technologies (NVT) were used extensively across the country. The most widespread were optical ballot scanners attached to a ballot box that accept paper ballots, as well as Direct Recording Electronic (DRE) machines, used for electronic voting, which may or may not have a printer attached to provide a voter-verified paper audit trail (VVPAT). Most states use more than one type of NVT as the authority to purchase equipment and regulate its usage is in many cases delegated to counties. In line with federal legislation, all states provided NVT at polling stations to assist voters with disabilities and language barriers to cast ballots secretly and independently.

In 2015, in line with international good practice and a prior OSCE/ODIHR recommendation, the EAC updated the 2005 Voluntary Voting System Guidelines (VVSG), to provide additional guidance and a comprehensive basis for NVT security and functioning which was used in some form in 47 states. Thirty-seven states and the District of Columbia used federally defined testing and certification of equipment. In addition, the Department of Homeland Security convened an Election Infrastructure Cybersecurity Working group to further address these issues. While some jurisdictions recently upgraded their voting systems, many election officials noted that NVT have not been replaced due to a lack of resources at the federal, state and local level, raising issues with the security, reliability and operability of the equipment. [citations omitted]

The full report is worth a look, both for its assessment of the US system but also for a window into the types of issues on which OSCE/ODIHR focuses when it observes elections around the world. That “fresh eyes” look at our system – although you may not always agree with it – is a valuable exercise for anyone who works with, or cares about, American elections.

The blog returns next Monday after a day off for Inauguration Day – stay tuned …

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