Why we should be careful about using the word ‘stolen’ about elections

Richard Hasen has written an excellent opinion piece in The Slate about why people should be wary of using the term ‘stolen election’ in reference to contests like the Georgia Governor contest earlier this month.

Hasen’s argument is that over using the word ‘stolen’ risks undermining trust in elections generally and that we don’t know whether the actions of the winner, Brian Kemp, as Secretary of State (the person in charge of the elections) were enough to change the outcome.

Instead of talking about an election being stolen, we should be looking at the suppression efforts and general incompetence that affect the rights of voters. Any suppression and any incompetence is bad and should be campaigned against. -not just if it is sufficient to change the outcome of an election.

US Mid-Terms – the OSCE/ODIHR verdict

OSCE/ODIHR have published their preliminary statement on the US mid-term elections.

Below I have reproduced the summary of the findings. If you want to read the whole thing, then click on the link above.

The 6 November mid-term elections were highly competitive and contestants could campaign freely, with media presenting a wide array of information and views, enabling voters to make an informed choice. However, campaign rhetoric was often intensely negative and, at times, intolerant, including on social networks. The fundamental right to suffrage was undercut in places by disenfranchisement of some groups of citizens and lack of full representation in Congress. Campaign finance rules do not guarantee full transparency. While the elections were largely administered in a professional manner and voters turned out in high numbers, decisions on important aspects of the electoral process were often politicized.

The electoral legal framework is complex and diverse. There are few nationwide requirements for procedural uniformity and detailed rules are found only at the state and sub-state level. Some states have amended laws to facilitate voter registration, early voting, and voting rights of ex-prisoners, partially addressing prior ODIHR recommendations. However, fundamental deficiencies remain in law, particularly in respect of disenfranchisement of citizens on various grounds. Lack of agreement in Congress to adopt a new formula to enforce a key aspect of the 1965 Voting Rights Act diminishes its effectiveness in safeguarding against discrimination on racial or linguistic grounds. A wide range of electoral litigation is ongoing, potentially causing uncertainty for voters and electoral stakeholders.

Elections are administered at state level with duties often delegated to some 10,500 jurisdictions across the country. Election officials were competent, operating transparently and in accordance with rules and established deadlines. While stakeholders overall had confidence in the administration of elections, chief election officials of some states were candidates in the elections they supervised, potentially leading to conflicts of interest and raising questions about the independence of the administration. The bipartisan Election Assistance Commission (EAC) provided valuable support to election officials, but further support from Congress is necessary to maintain its long-term role. States and jurisdictions continued to provide a range of voter information materials, including in minority languages and accessible formats.

Federal and state authorities launched a number of robust initiatives to help secure election technologies, including from cyber-threats. Following the designation of elections as critical infrastructure, a sector- specific agency was established to share information and good practice to prevent and respond to attacks. The EAC expeditiously disbursed USD 380 million that Congress allocated to replace outdated voting machines, strengthen existing computer and network infrastructure, and build cybersecurity capacity. However, more investment is needed to replace aging voting equipment and to maintain security. There were no public reports of verified cyber attacks on election infrastructure prior to election day. Despite advancements, challenges remain in respect of co-ordination among federal and state bodies, security of voter registration webpages, and requirements for vendors to upgrade systems.

Legislation and practice effectively disenfranchised around 11 million otherwise eligible voters. Some 4.7 million citizens residing in the District of Columbia and in US territories lack full representation in Congress. An estimated 6.1 million persons with criminal convictions are disenfranchised, with a disproportionate impact on racial minorities. Voting rights of persons with intellectual disabilities vary across the country, and, in many states, such persons are deprived of the vote without individual assessment. These restrictions breach OSCE commitments and international standards with regard to universal and equal suffrage.

Voter registration is active and implemented at state level, with minimum conditions set by federal law. A number of states enhanced their efforts to facilitate voter registration, including online and automatic registration, and increased the sharing of state registration databases to ensure the integrity of voter registers. It is estimated that some 50 million eligible citizens were not registered for these elections, for various reasons. At the same time, some decisions and initiatives related to voter list maintenance and integrity effectively limited access to vote for some citizens.

Voter identification is a politically divisive issue. In these elections, 34 states required voters to show identification, 17 of which required photo identification. Voter identification rules in some states can present obstacles, particularly for low-income voters, racial and linguistic minorities, and Native Americans. While measures to ensure electoral integrity are important, they should be designed in a manner that does not disenfranchise eligible voters.

A total of 1,262 candidates stood in the mid-term elections, providing voters with a variety of choice. In some states, requirements for registration, including the number of supporting signatures, proved challenging for smaller parties and independent candidates. Concerns also persist about the drawing of electoral districts. While districts are generally equal in size, there are widespread concerns that redistricting is often a partisan process, resulting in a number of uncompetitive contests. In 42 House races, a Democrat or Republican ran unopposed.

Fundamental freedoms were overall respected in a campaign that engaged a high number of voters across the country. The campaign was dominated by the two main parties and marked by frequently divisive and intolerant rhetoric, including several incidents with xenophobic and anti-Semitic connotations. Concerns were raised regarding online disinformation, from domestic and foreign sources, as well as the transparency of online advertising. There were several serious security-related incidents in the final weeks of the campaign.

There were both a record number of women who ran as candidates and who were ultimately elected, although women remain underrepresented in the Congress. A number of grassroots movements raised the profile of issues related to women’s rights, promoting a diverse range of views. There was an increased number of candidates from historically underrepresented groups, including persons with disabilities, Native Americans, and openly LGBT persons.

Campaign finance rules are enforced at federal level, with few limits on donations and no limits on expenditure, including by so-called Super PACs. While financial reports were submitted and published expeditiously, some non-profit organizations are not required to disclose their reports, undermining an otherwise transparent system. These were the most expensive mid-term elections in the US, projected at USD 5.2 billion, with most spending on behalf of the two main parties.

The media is pluralistic and vibrant, offering voters a wide range of opportunities to inform themselves, but is increasingly polarized. The legal framework provides for limited regulation and few rules for broadcast media during elections. Continuous verbal attacks on journalists and news media by senior officials raised concerns over the safety of journalists and undermined the essential role of media in a democratic society. Cable TV news coverage reflected the existing polarization of political and electoral discussion. The public broadcasters offered balanced coverage of the two main parties. The repeal of “net neutrality” rules raised concerns over potentially reduced access to information.

Election observation is regulated by states. Restrictions on election day observation by international observers were in place in 12 states. While federal government departments and agencies supported and facilitated the work of the IEOM, political and electoral authorities in several states declined to meet with ODIHR LEOM observers, and in one state prevented observation altogether. Such restrictions on international election observers are not in line with OSCE commitments undertaken by the US Government. Voting was observed extensively by parties and civil society, providing oversight and transparency.

Some 35 per cent of voters are estimated to have voted early, either in person or by mail. Overseas voters could request an absentee ballot that, in some instances, could only be returned electronically, which required voters to waive the secrecy of their vote.

The use of new voting technologies (NVT) is extensive and varies considerably across the country. While there is a general trend to return to paper-based voting, voting machines without a voter-verified paper trail were used in 15 states, with 5 states relying on them exclusively. Outdated voting machines known to have serious usability issues were used in some states. Positively, in line with prior ODIHR recommendations, efforts to strengthen public confidence in the accuracy of election results were introduced, including through certification of NVT and post-election audits.

Election day was orderly and calm overall. Poll workers in polling stations observed by IEOM observers were knowledgeable, helpful and well-prepared, and polling stations visited were as a rule accessible for voters with disabilities. Prescribed procedures were generally followed, although conditions did not always ensure the secrecy of the vote. Where observed, the closing of polling stations and the transmission and tabulation of results was transparent, orderly and efficient.

US Mid-Terms – an initial review

Here are my initial thoughts about the US mid-terms (albeit, they are also based on a Chatham House seminar* largely led by American journalist and academic voices as well as the views of various American journalists and pundits via twitter and CNN).

1. This election reinforced the polarisation of the country. Voters had to answer the question “What do you fear the most – people coming across the southern border or losing coverage for pre-existing conditions?” Exit polls show healthcare was the biggest issue, with immigration second and the economy third. The wins for the Democrats in the House came in suburban districts which were not interested in immigration so much as tax and healthcare. Healthcare is an issue largely lost to the GOP now (and lots of vulnerable Republicans ran away from their previous votes on the issue) and Trump reportedly thought tax boring to campaign on and went on the caravan and immigration. Whilst the caravan might have inspired a few Republicans in red states to vote (and helped the Senate cause), the suburbs went for the Dems. The question is, what will Trump decide to run on in 2020 and will it be the right issue?

2. With a Trumpier Senate (the Dems lost three seats and their moderate voices) the President can now get his judicial appointments through very easily and could even fire Sessions or Mattis without worry. But a split Congress means that it will become very difficult indeed to fire Moeller. The Democrats can now block a lot of legislation but, apart from the tax cut, Trump has tended to govern by regulation and executive order. What we might well see is the Dems doing deals with Trump on things like drug prices and infrastructure (but not the wall) and then investigating the heck out of him and his administration.

3. There will be plenty of investigations but no impeachment unless Moeller comes back with something very big indeed. Trump and his cabinet have done lots of things that are ripe for committee hearings and the GOP decision to allow committee chairs to issue subpoenas without a vote will open Pruitt, Ross and many others up for investigation (even if they have quit). In contrast, Trump will resort to doing even more Trumpian things – twitter storms, MAGA rallies and one on one meetings with world leaders.

4. Before yesterday, around half the states had a Republican governor AND republican state assembly AND a republican state senate. There were only eight Democratic ‘trifectas’. There are now six more. That matters because with a sclerotic congress a lot of the focus will move to state level and also because after the 2020 census it will be the state governments that supervise re-districting. The Democrats were playing catch-up when it came to focussing on down ballot races, but they have now caught up.

5. A massive issue is about who was able to cast a vote. There have been lots of news stories about voter suppression in Georgia (where one of the candidates for Governor was the sitting Secretary of State and therefore in charge of the election), in North Dakota (where both Native Americans and hispanics were targeted and the sitting Democrat lost her Senate seat) and in Florida. But in Florida a ballot inititative to allow 1.4 million convicted felons to vote when they have served their sentence passed with more than 60% support. This group is predominantly African Americans and hispanics and those groups overwhelmingly vote Democrat. So whilst Andrew Gillum lost his bid to be governor this time, it may well be that the swingiest of swing states will move decisively away from Trump and the GOP from 2020.

There will be a lot more to come out of this election as the final results are declared. It will also be interesting to see what the OSCE/ODIHR election observation mission say when they hold their press conference and release their preliminary statement at about 7pm (GMT) tonight.

*The Chatham House Seminar featured Steve Erlanger (NYT, Chief Diplomatic Correspondent, Europe), Dr Ursula Hackett (Royal Holloway), Dr Jacob Parakilas (Chatham House), Professor Peter Trubowitz (LSE) and Dr Leslie Vinjamuri (Chatham House).