Purges and Closures and Lines, Oh My!—do Georgia's 2018 Election Procedures Violate International Law?

• Publication year: 2021

Purges and Closures and Lines, Oh My!—Do Georgia's 2018 Election Procedures Violate International Law?

Holly Katherine Stephens^*

[Page 441]

Table of Contents

I. Introduction................................................................. 443

II. The International Covenant on Civil and Political Rights.....................................................................444

A. About the ICCPR...............................................................445

i. Human Rights Committee...........................................446
ii. Optional Protocols......................................................447
iii. State Reporting............................................................447
iv. Examining State Reports.............................................449

B. Political Rights Under Article 25......................................450

i. State Obligations Under Article 25.............................450
ii. ICCPR Article 25(a)....................................................452
iii. ICCPR Article 25(b)....................................................453

C. Restrictions on the Right to Vote.......................................454

i. Reasonable Restrictions .............................................. 455
ii. Unreasonable Restrictions .......................................... 456

D. The United States and the ICCPR.....................................458

i. Pre-2018 United States Reports..................................459
ii. Post-2018 United States Reports................................461

III. Georgia's 2018 Election Procedures................................462

A. Problems with Voter Registration.....................................464

i. "Exact Match "............................................................465
ii. "Use It or Lose It"......................................................467

[Page 442]

B. Problems with Voter Access..............................................470

i. Precinct Consolidation...............................................470
ii. Long Lines on Election Day........................................471

IV. Do Georgia's 2018 Midterm Election Procedures Violate International Law?..................................................473

A. Are the Restrictions Used in Georgia Reasonable?..........474

i. Voter Registration Issues............................................474
ii. Voter Access Issues.....................................................476

B. Should the United States Act to Ensure Georgia's Compliance with the ICCPR?............................................476

V. How to Ensure Georgia's Compliance with International Law Under the ICCPR......................................................477

A. Federal Government Recommendations...........................478
B. State and Local Government Recommendations...............479
C. Civil Society Recommendations.........................................481

VI. Conclusion............................................................... 482

[Page 443]

I. Introduction

Imagine you are eighteen years old, you are a United States ("U.S.") citizen living in the state of Georgia, and it is 2018. You have to be at work by 10:00 a.m., so you wake up early to make sure you can place your vote and get to work. Around 8:00 a.m., you drive through the same suburban Atlanta neighborhood where your parents have always lived to the church where your parents took you growing up when they were voting. You arrive at the church to find that the precinct has been closed. A note on the door tells you that you may vote at a different polling place several miles away. Determined, you drive to the new precinct. When you arrive at 8:45 a.m., you see a line of more than two hundred people stretching down the sidewalk. You decide it will be fine if you are a few minutes late to work, so you park your car and get in line to vote. At 9:30 a.m., you are still over one hundred people away from the front of the line, so you have to ask your boss for the morning off work. You stand in line waiting for four hours. When you finally reach the front of the line, the poll workers tell you there is a problem. They cannot find your name on the list of registered voters. You express your confusion, explaining that you are a U.S. citizen, that you filled out your voter registration application accurately and submitted it on time, and that you have not moved since submitting your voter application. While the election workers understand your frustration, they say there is nothing they can do. They direct you to fill out a provisional ballot and let you know that your vote may or may not be counted.

A week after the election, you call Georgia's State Election Office to figure out why you were unable to place your vote using a traditional ballot. The woman who answers the phone lets you know that there was an error in your voter registration application and clarifies that your application did not match the information in the state's database. After looking into the issue, she tells you that there must have been a clerical error. She explains that someone must have accidentally misspelled your name when entering the information into the state's system, despite it being written correctly on your voter registration application. She apologizes and lets you know that your voter registration is now valid—a week after the deadline to cast your ballot in the 2018 election.

The right to vote is the hallmark of a free society. It is the most important of all the civil liberties possessed by an individual in a representative democracy. Imagine that the situation above is your first time voting in an election; that it is your first time participating in the democratic process; and that your vote did not count. Are the impediments you experienced unreasonable? Have you been deprived of your right to vote? If so, would your experience constitute a violation of international human rights norms?

[Page 444]

This Note explores the state of Georgia's 2018 General Election to determine whether the state's election procedures in place at the time violated international law.¹ Part I of this Note discusses the International Covenant on Civil and Political Rights ("ICCPR") and the obligations it places on member States—including the United States—to protect their respective citizens' political rights under Article 25.² Part II examines several of Georgia's 2018 election procedures, which opponents argue may have suppressed the ability of legitimate citizen voters to exercise their right to vote. Part III considers whether these election procedures presented an unreasonable restriction on eligible Georgia citizens' right to vote, which would put the United States in violation of international law under Article 25 of the ICCPR. This Note concludes by offering recommendations for how the United States can best ensure that Georgia's election procedures comply with the ICCPR in the future. This Note primarily seeks to provide guidance to U.S. federal, state, and local governments regarding best practices for ensuring effective implementation of its citizens' right to political participation under the ICCPR.

ii. The International Covenant on Civil and Political Rights

It is important to note that "[t]he principle of universal and equal suffrage for all adult citizens constitutes one of the cornerstones of modern democracies."³ The Charter of the United Nations explains that one of the organization's purposes is "to promote and encourage respect for human rights and fundamental freedoms for all."⁴ After the Second World War, the United Nations General Assembly created the Universal Declaration of Human Rights, which represents "a proclamation of basic rights and fundamental freedoms, bearing the moral force of universal agreement."⁵ In order to give legal force to the human rights guaranteed under the Universal Declaration, the General Assembly adopted the ICCPR and the International Covenant on Economic, Social, and Cultural Rights

[Page 445]

in 1966.⁶ Both treaties set "basic [human rights] standards that have inspired more than 100 international and regional human rights conventions, declarations, sets of rules and principles."⁷ Once the ICCPR had thirty-five State ratifications, it entered into force in 1976 (ten years after its adoption by the General Assembly).⁸ At the time of this Note's publication in July 2021, 173 countries were party to the ICCPR, and of those, 74 were signatories.⁹

A. About the ICCPR

The ICCPR is "the most comprehensive and well-established [United Nations] treaty on civil and political rights," containing binding legal obligations for State parties.¹⁰ Despite its coexistence with various other human rights instruments, the ICCPR represents a basic universal human rights standard in international law.¹¹ It is often used "to measure and assess the human rights performance of States and as the starting point for the development of new international human rights instruments."¹² The ICCPR's civil liberty protections make it central to determining how the United States' federal, state, and local governments can best ensure that U.S. elections comply with international law.

[Page 446]

i. Human Rights Committee

Article 28 of the ICCPR establishes the Human Rights Committee ("HRC"), a treaty-based body created by the State parties.¹³ The HRC is comprised of eighteen independent experts elected for four-year renewable terms.¹⁴ HRC members must be nationals of State parties and "persons of high moral character and recognized competence in the field of human rights, consideration being given to the usefulness of the participation of some persons having legal experience."¹⁵

As the sole body with express functions related to the ICCPR, the HRC is in charge of monitoring compliance of member States with their obligations under the ICCPR.¹⁶ The HRC examines and responds to State reports and considers inter-State complaints and individual complaints¹⁷ with...