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ELECTION OBSERVATION IN THE LONG TERM

Remarks of

David M. Mason, Vice Chairman

United States Federal Election Commission



OSCE Human Dimension Seminar of Election Processes

Warsaw, 29 May 2001



When the heads of central banks gather in international conferences, the world notices:
reporters crowd hallways, investors hesitate, markets pause, agreements constitute major
news.

When the heads of national electoral commissions gather, few notice, few appear to
care. This difference is understandable - the World has always loved money - but
unfortunate. What election officials do, or fail to do, is more important to the future of
their countries and to fulfilling the aspirations of our fellow citizens than monetary
policy or market reform. A fair and efficient election system is ultimately more important
than even an adequate national defense or criminal justice system. The human dimension is
more important than the military or economic dimensions, for military and economic affairs
are properly ordered to the human dimension and are properly directed by it.

Functional defense, police and monetary systems are essential, but they fulfill needs
of a lower order: survival, food, clothing, shelter. Ultimately humans are meant to be
free. To be free, people must govern themselves. And in all but the smallest communities,
self-government is exercised through elections. Thus, conducting and regulating elections
is the most fundamental and necessary task for the government of a free people. The
legitimacy of every other action of the government relies upon free, fair and honest
elections. Elections are the principal means through which nations determine their own
destinies. We who hold responsibility for elections participate in fulfilling the highest
calling of a free people.

We should share some pride among ourselves in playing a special role in that high
calling, as unrecognized by others as it may be. Perhaps we can take some comfort when we
return home in the appreciation shared by those of us here in the way elections uniquely
shape and form national destinies. And, of course we hope to learn some lessons from one
another about the different ways in which the challenges of democracy can be met.

I want to offer from the American experience three observations about the role in
election processes by international organizations such as the OSCE:

> The need for permanent and continuing vigilance in ensuring free and fair elections;
>         The lengthy period needed for specific remedial measures in places where voting rights
>         historically have not been fully respected or where elections have not been free from
>         taint;
>         The permanent value of a forum in which election administrators can compare experiences
>         and methods in an effort to improve their own national practices.

In describing certain features of the US election system I am not necessarily
recommending those features as a complete model for countries with different
constitutional and legal structures; there are a variety of legitimate ways to run
democracies. But the contrast between our federated system and the more unitary systems
prevalent in most other countries may present some useful considerations.

The United States was founded when 13 separate colonies joined together in a
revolution. For the first eleven years of our history we operated with almost no national
government; we had a legislature, but it had no power to tax, and we had no executive and
no national courts. The Constitution of 1787 established the system of dual sovereignty
which continues today, but not for nearly 80 years more, and only then through a civil
war, was the fundamental issue of whether we were separate nations joined in a compact or
one nation with separate parts finally resolved. Even today states manage their own
diverse criminal justice systems separate from the national system, and subject only to
some broad national constitutional rules.

The United States does not have a unitary electoral system, but fifty separate state
systems. For state and local elections there are fifty separate election codes. While
those systems share many similarities, they also allow significant differences on
questions including whether there is a plurality or majority requirement in individual
elections, access by minor party and independent candidates to the ballot, and whether
voting by party is encouraged or made nearly impossible. (In my home state of Virginia the
party identification of candidates for most offices is not printed on the ballot.) Again,
subject only to some broad constitutional guarantees, states manage their own systems for
registering voters, qualifying parties and candidates, balloting and counting votes.

While the US electoral system is state-centered as a matter of constitutional form, in
practice elections are run and administered at the local level, by county and municipal
governments. In most states, for instance, voters register with their local government,
and state government may not even have ready access to local registration lists. These
local lists, however, are used for local, state and national elections. Local officials
are responsible for the entire election process in their jurisdictions: for establishing
election districts, for securing, staffing and managing polling places, for acquiring
voting machines (in all but two states), for designing ballots, for counting votes,
adjudicating challenges and certifying results. Of course, these local officials operate
under varying national and state guidelines and requirements, but they generally work for,
are paid by, and receive their budgets not from state election directors but from
municipal or county councils. Thus, the actual administration of elections can vary
significantly even within a state, and state election officials who are formally
responsible for the process may have little direct control over it.

As a result of controversies in our recent Presidential election, it is likely that
these processes will be subject to greater centralization, at least up to the state level,
but the fundamental administrative structure, with local officials managing local, state
and national elections in their jurisdictions, is unlikely to change. The advantage of
this system in a well-established democracy is that the process of self-government, even
at the national level, is managed by citizen-neighbors at the local level, not by experts
from the national capital or by a large and impersonal bureaucracy. The system has a
natural level of transparency, provides multiple levels of oversight and permits adequate
uniformity while allowing for local variations. This system also provides structural
protections against fraud or machine and counting errors by limiting consequences to
individual localities.

As a matter of constitutional convenience, states are also charged with conducting
elections for the national legislature, subject, however, to plenary power of Congress to
make any specific rules it wishes states to follow for Congressional elections (this power
has been exercised quite infrequently). Thus, the same local officials, with their local
lists, workers and equipment conduct our national elections along with state and local
contests. For selection of the President, states are not even required to conduct
elections (though all do by choice), but each state may determine any system its
legislature chooses for allocating its share of "electors" who constitute the
formal selection body for the presidency. All but two states allocate 100% of their
electoral votes to the candidate who wins a plurality of the popular vote in that state.
Thus we sometimes characterize our Presidential election as fifty concurrent state
contests. It was this system that resulted in the selection of President Bush despite a
victory in the popular vote by Mr. Gore.

The narrow margin in the Presidential election and controversies over the result in the
state of Florida have, of course, produced much discussion of changes in the Presidential
selection process and in voting practices generally. Some additional states, for instance,
are considering proportional allocation of presidential electors based on the state
popular vote. Most serious consideration of election reforms remains, however, at the
state level. The national Congress is considering principally measures to provide
financial assistance to states to purchase new voting machines, to provide technical
assistance, and perhaps to provide some rules for the registration process.

Given recent events in the United Nations it may sound strange for an American to
praise multi-lateralism, but I would like to suggest that you consider the American
federal experience as a useful partial model for continuing international election
oversight. By way of comparison, when nations enter multi-national trade agreements they
make specified mutual commitments regarding internal monetary, tariff and economic
policies to ensure that trade will be fair. When nations enter defense alliances, they
agree upon operational and equipment standards to ensure that forces will be able to
operate on a cooperative basis when necessary.

I suggested that elections are a principal means through which nations determine their
destinies. Of course, nations do not work out their destinies in isolation but in the
community of nations. Just as nations form economic and military ties, it is proper that
they form cooperative international relationships in the human dimension, and those
relationships will naturally entail certain mutual commitments regarding internal
governance. These are represented in the case of the OSCE by the Copenhagen statements and
other documents.

The world has been blessed in the last decade by remarkable and widespread advances in
self-government and free elections. The fall of communism in Europe allowed many nations
to conduct free elections for the first time in half a century or more, some for the first
time ever. The fading of the threat of international communist subversion allowed and
required many governments in Asia, Africa and Latin America to liberalize their
governmental processes and permit genuine political competition. In most countries of the
world today the fundamental right to self-government is not disputed, and generally the
instrumental rights necessary to exercise genuine self-government are respected. Every
citizen may vote, but only once, voters and candidates should be free from violence or
threats in campaigning and voting, election administration must be transparent and vote
counting fair and impartial, votes must not be bought or sold, and government officials
must not accept bribes or demand payments in return for favors, protection or special
treatment. These principles are widely respected and, in most countries, generally
applied.

We know from ODHIRs election reports that not every nation has yet applied all of
these principles fully and consistently. Inducing those countries that are lagging to
fulfill their commitments and remaining vigilant against reverses or abandonment of these
commitments should be the first and continuing functions of ODHIRs election
activities. As sensitive and difficult as such topics can be, we must not retreat from
them. Election officials from affected countries should step forward and embrace the
challenges represented by such reports. For a party or leader claiming the right to rule
without the consent of citizens suppresses rather than represents a people. And if we as
election administrators fail to do our utmost to ensure open, free and fair elections, we
betray our countries. This brings me back to my first point from the American election
experience.

The United States federal system in which election administration is functionally
delegated to localities provides a natural means of oversight of election processes.
States are responsible, in the first instance, to see that localities exercise their
functions properly and the federal government remains as the ultimate guarantor of what we
call a "republican" form of government and of equal treatment of all citizens.
Even though local governments have been conducting elections in the United States
continuously for 250 years, this oversight is still necessary. In virtually every election
there are isolated local instances of fraud or procedural irregularities. Periodically,
there are more significant controversies, such as that over the vote counting on Florida
in the Presidential election that had to be resolved by our Supreme Court.

We all realize, as is the case with any other crime, no country is permanently and
universally free from evils such as these. Even when every OSCE nation has a secure and
well-established democracy, there will remain a role for an international body to help
national officials directly responsible for elections detect and prevent the inevitable if
isolated instances of corruption and irregularities from becoming or creating systemic
problems. When local election officials in the United States face complaints of
irregularities, they are often relieved to bring in state or federal investigators to
obtain an objective, professional review. The fact that such reviews are conducted by
officials with no direct stake in the outcome contributes immeasurably to the confidence
by citizens or aggrieved parties that allegations were fully reviewed and properly
addressed, especially including those instances in which allegations were judged to be
ill-founded. ODHIR teams may well be useful to perform such investigative and consultative
roles even if and when regular election observation is deemed no longer necessary.

A second point of consideration from the American experience regards how long election
observation may be necessary in areas that have a history of difficulties once those
difficulties are largely resolved. Some states in the United States have an unfortunate
history of discrimination based on race. Overtly discriminatory laws and official
practices were abolished in those states through concerted action by the US Congress and
successive Presidents in the 1950s and 1960s. Concerns are still occasionally raised,
including even in our last election, about denial of voting rights to racial minorities,
but these allegations are isolated and exceptional rather than systemic. Nonetheless, the
United States still maintains two special programs of election oversight by the federal
government in those states with a history of discrimination. The Voting Rights Act
requires state and local officials in identified areas to submit any changes in election
laws or procedures to the US Department of Justice for prior review before implementation.
This reaches matters as minute as the change in the location of an individual polling
place and includes actions by state legislatures and local councils to redraw their own
election districts. A second program provides for federal election observers for elections
in which a possibility of racial discrimination appears evident in advance.

These programs are extraordinary departures from the general American rule that states
run their own elections. And they remain in force over three decades after the
discriminatory practices they were intended to combat have been largely extinguished. One
reason for the persistence of the special oversight mechanisms is that trust in the
election systems of those states that have a history of racial discrimination will not be
established fully in the lives of those who were subject to discrimination or denied
fundamental rights. Thus, 40 or 50 years is not too long a horizon to contemplate election
observation or other specific oversight. This is partly to prevent a recurrence of
problems but more importantly to instill and maintain the trust and confidence of citizens
themselves. Instilling national traditions is not a matter for one decade only.

Finally, looking ahead to a future in which all discrimination is abolished and
confidence in the commitment and practice of free and fair elections by member nations is
complete, a role will remain for a forum in which national election administrators can
confer regarding professional practices and procedures, equipment and developments in the
field. With 50 different election systems, the United States has 50 different ways to make
mistakesbut also 50 different laboratories in which to learn. Even though my
Commission has no direct role in the administration of elections, state election officials
asked us to provide a forum in which they could gather and exchange information on common
technical and administrative concerns. Through this mechanism we have, for instance,
established technical standards for voting machines. We are now working on management
standards for elections and on recommended principles of ballot design.

In the international arena, much fine work in these areas has been done by various
multi-national organizations and by NGOs. However, particularly as national election
officials become more expert themselves, there will be a need for a forum in which
practicing administrators, rather than technical experts, can gather to exchange
information and discuss common issues. Such discussions can identify issues and needs
which may become apparent in no other way.

Within the Federal Election Commissions election administration forum, for
instance, state and local officials have asked us to serve as a repository for reporting
about particular problems encountered in using different types of voting machines.
Equipment may meet relevant technical standards but perhaps be prone to breakdown or
present difficulties in particular applications. Collecting and disseminating such
information can be invaluable to election administrators in preventing problems,
maintaining equipment and selecting new machines. This specific function may or may not be
one best performed by ODHIR, but my point is that a regular forum for election
administrators to discuss practical problems with their peers is useful in itself and is
quite likely to produce specific subsidiary projects.

A recognized forum of this sort can also have important effects on the professional
development and status of election administrators within individual member countries. I
began by speaking of the disproportion with which the world views economic as opposed to
human, social or electoral matters. In addition to discussing specific topics such as
international standards, election observation and mechanisms for information exchange, we
must rededicate ourselves to the proposition that the human dimension is ultimately more
important than the economic and military spheres. We must consider how we ourselves can
best perform our greatly privileged roles in our respective nations of enabling our fellow
citizens freely to realize their destiny through open and fair elections.