Back to Basics: How International Election Observation Standards Can Strengthen Democracy in the United States

• Jurisdiction: United States,Federal
• Citation: Vol. 50 No. 2
• Publication year: 2022

Back to Basics: How International Election Observation Standards Can Strengthen Democracy in the United States

Ward Evans^*

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TABLE OF CONTENTS

I. INTRODUCTION.....................................................................................507

II. ELECTION OBSERVATION WORLDWIDE................................................510

A. The Development of Global Election Observation Norms......511

i. The History of International and Domestic Election Observation....................................................................511
ii. The Methodology of Election Observation.......................515

B. Election Observation in Action—Nepal And Tunisia..............519

i. Nepal..............................................................................519
ii. Tunisia............................................................................522

III. THE UNITED STATES' ELECTION ADMINISTRATION AND OBSERVATION APPARATUS..................................................................................525

A. Election Monitoring in the United States...............................526

i. The Federal Election System and Observation Apparatus 526
ii. The State Election System and Observation Apparatus.... 528

C. Applying International Election Observation Standards to Elections in the United States................................................530

i. The 1948 Texas Senate Election......................................531
ii. The 2000 Presidential Election........................................532
iii. The 2008 Minnesota Senate Election...............................533
iv. The 2020 Presidential Election........................................535

IV. IMPLEMENTING INTERNATIONAL ELECTION MONITORING STANDARDS IN THE UNITED STATES.....................................................................539

A. Outline of Proposed Federal Legislation Implementing International Election Standards...........................................540

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B. Objections............................................................................542

i. Election Observation is Ineffective..................................542
ii. Even if Election Observation is Effective, It Does Not Justify the Cost...........................................................................543
iii. Election Observation Violates Principles of Federalism .. 544
iv. Implementing International Election Observation Standards Threatens the United States' Independence.....................545
v. Implementing International Election Observation Standards in the United States Will Not Solve the Problem of Global Dissatisfaction with Democracy......................................546

V. CONCLUSION.......................................................................................546

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I. INTRODUCTION

Democracy is facing a legitimacy crisis. In 2010, "the number of . . . 'electoral democracies' dropped to 115—[the] lowest level since 1995."¹ Democracies consistently perform better than other types of government in providing health, education, and food to their people,² and yet dissatisfaction with democracy rose "by around +10% points, from 47.9 to 57.5%" from 1990 to 2020.³ This increase in dissatisfaction has been seen worldwide, but is driven by larger, more developed democracies.⁴

This trend is concerning for those who believe democracy is "the worst form of government, except for all those other forms that have been tried."⁵ It is especially concerning in the United States, where dissatisfaction with democracy has increased by around one-third of the population in just one generation.⁶ When considered within the context of the events of the past three decades, that increase in dissatisfaction may not be as surprising as it initially appears.⁷ In that time, two U.S. presidents have won the electoral college but lost the popular vote;⁸ Russia attempted to (and to some extent successfully did) interfere with an election;⁹ the former U.S. president and many of his supporters alleged massive fraud in the most recent presidential election;¹⁰ and polarization, disenfranchisement, and resentment have

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continued to grow.¹¹ Though some may say democracy's popularity is plummeting because it is unable to respond to today's problems, history has shown us that democracy is the bestform of government—both for a country's people and the world at large.¹² Therefore, it is in our individual and collective interests to promote democracy both domestically and internationally. One way to promote democracy at home and abroad is through election monitoring.

This paper will argue that the United States should pass legislation applying international election observation¹³ standards in all federal elections.¹⁴ While election observation may seem mundane and irrelevant, the prolonged declarations of fraud after the 2020 election—as well as the January 6, 2021 riot at the Capitol which was largely fueled by those declarations—show otherwise.¹⁵ Part I discusses the evolution of the international election

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observation scheme and highlights instances where domestic and international election observation has improved democracy worldwide, using Nepal and Tunisia as case studies. Part II explains the election administration system in the United States, the current status of election observation within the United States, and discusses some contested federal elections in the country's history whose controversies could have been mitigated by robust election monitoring. Part III outlines how election observation might be statutorily implemented in the United States, and addresses counterarguments against doing so.

Election observation could be especially useful in the United States, which "has long fallen short of international election standards in several key areas[.]"¹⁶ Fiascos such as the 2000 election have shown that the United States' current election system is flawed.¹⁷ In addition to polarization, foreign interference, and disenfranchisement, COVID-19 threatened to overwhelm the already strained electoral apparatus.¹⁸ These threats not only show just how vulnerable democracy in the United States is, but call for action to buttress our democracy. Enacting federal legislation implementing international election observation standards nationwide—which would permit domestic observers to oversee every facet of all federal elections—would be a relatively simple, yet effective, way to accomplish this.

In today's political climate, discussion often focuses on reforming campaign finance laws, or ending the war on drugs, or fighting systemic racism, or any number of issues that (while important) seem almost too overwhelming for our society to address quickly. Election administration (which election observation is a facet of) seems far less interesting—almost too basic to be important. However, mastery of the basic fundamentals is vital to success in any endeavor.¹⁹ Furthermore, the 2020 election has shown just how impactful election administration can be.²⁰ Genuine, legitimate, trustworthy elections participated in by an engaged public are fundamental to

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a healthy democracy,²¹ and election observation is a proven way to ensure elections meet those standards.²² It is time for the United States to use election observation to remaster the most fundamental aspect of democratic governance: elections.

II. ELECTION OBSERVATION WORLDWIDE

Election observation, which started as far back as 1857,²³ is the "primary tool the international community uses to assess the legitimacy of governments"²⁴ and is one of the most visible forms of democracy promotion worldwide.²⁵ Observers can be either citizens of the country holding the elections or foreign observers from the international community.²⁶ As election observation has become more common, it has also become more influential and is now sought after by governments who want to be seen as legitimate (either because they actually are, or because they want to be perceived as such).²⁷ The international election observation system, which includes

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observation by both foreign nations and domestic observers, has evolved over time from an ad hoc activity of Western academics to a powerful force in the international sphere.²⁸

A. The Development of Global Election Observation Norms

i. The History of International and Domestic Election Observation

The first election observation mission was sent in 1857 by a European Commission established by the Treaty of Paris to observe the second election concerning the unification of Moldovia and Wallachia following the Crimean War, after the Ottoman Empire attempted to manipulate the first one.²⁹ While election observation as a way to ensure the legitimacy of other countries' elections may have started then, it did not come into its own until after the creation of the United Nations (UN).³⁰ Democracy promotion in general has been a goal of Western governments since the UN was created.³¹ The UN Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR) fueled independence movements in formerly colonial states, and some of the first observation missions the UN undertook were small missions to oversee referenda on independence for countries under UN trusteeship.³² Some of the earliest election missions were sent to Korea in 1948, British Togoland in 1956, and French Togoland in 1958.³³ These missions, though small, gave international legitimacy to the states and reinforced the outcome of the elections.³⁴

By the early 1960s, other organizations began observing elections as well: the Organization of American States (OAS)—which pioneered

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monitoring in sovereign states³⁵ —sent its first election observation mission to Costa Rica in 1962,³⁶ and the Commonwealth Secretariat (CS) began observing elections in British-controlled regions during that time.³⁷ Election observation remained a constant, albeit fairly infrequent...