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Why Election Problems are Human Rights Violations:
A Primer on the International Law Governing November 2


Thursday, Oct. 21, 2004

Over the past few months, many have claimed November 2 will mark the most important election in our lifetimes. And, of course, not only Americans' lives will be affected: As the Chicago Tribune reports this week, "From the ramshackle teashops of Kabul to the smart salons of Paris' Left Bank, the contest between President Bush and Sen. John Kerry has become the topic of an intense global conversation." It seems only fitting, then, that international law -- and human rights law in particular -- has much to say about the upcoming election.

Several treaties the U.S. has signed and ratified - and additional international law sources, as well -- lay out clear benchmarks for assessing elections, and for providing remedies if these benchmarks are not achieved. And under Article VI of our Constitution, treaties ratified by the Senate - like statutes - are part of the law of the land. That means that the United States must comply with them, or else violate not only the treaty itself, but also the Constitution that makes that treaty legally binding. In addition, international observers will be present to monitor the election - just as U.S. observers at times have monitored foreign elections.

November 2's election - especially if it is as close as predicted, or if the transition to new balloting methods does not go smoothly - may be heavily litigated. If it is, the litigants should consider invoking not only domestic but also international law.

The Kinds of Problems that May Arise - Both Familiar, and New

We all recall Florida 2000 - with its controversial voter registration methods, faulty equipment, inconsistent and unclear voting procedures, and infamous "hanging chads." In the end, Florida's choice for president was decided, according to some reports, by fewer than 540 ballots.

African-American voters suffered disproportionately from Florida's faulty methods. In a report earlier this year, the non-partisan U.S. Commission on Civil Rights said that in Florida, African-Americans were 10 times more likely to have their ballots rejected, and were often prevented from voting because their names were erroneously purged from registration lists.

Since 2000, many new voting technologies have appeared, such as touch screen and electronic voting, that aim to make chad interpretation obsolete. But these new technologies may only raise different problems, and may again end up disenfranchising voters. Moreover, the "digital divide" - by which the poor have far less computer access than those who are better off - may mean that these problems, like those in 2000, do not fall on all voters equally.

Early elections began this week in Florida, and the results raised many concerns. In Orlando, for example, long lines and computer glitches led to a two-hour wait to vote. (The glitches prevented poll workers from verifying the names and addresses of eligible voters.) One group has asked the U.S. Civil Rights Commission to investigate possible wrongful activities to suppress the African-American vote in the Tallahassee area. And ominously, the former Mayor of Tallahassee recently stated, "we find ourselves in the same predicament, if not worse, today [as we did in 2000]."

Recent news stories suggest, moreover, that such problems won't be confined to Florida. In Denver, reports suggest that more than 150,000 new voter registrations may have been fraudulently obtained. In Nevada, a company hired by Republicans to register voters has been accused by a former worker of destroying Democrats' registration forms. And in New York State, more than 50,000 immigrants who have applied for citizenship will not be eligible to vote because of extensive processing delays in the federal Department of Homeland Security.

Treaty Law - Which Is United States Federal Law - Sets Election Standards

As noted above, if there is indeed litigation relating to the November 2 election, international law could play a role - as could international monitors. Several treaties are directly applicable.

First, there is the Universal Declaration of Human Rights (UDHR) - which was drafted in large part by the United States under the guidance of Eleanor Roosevelt, and adopted by the U.N. in 1948. Article 21(3) of the UDHR provides that "the will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures."

Second, there is the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which the U.S. has signed and ratified. In its Article 5, the ICERD similarly provides that countries will undertake to provide the right to participate in elections--to vote and to stand for election-on the basis of "universal and equal suffrage," without distinction as to "race, colour, or national or ethnic origin."

Third, there is the International Covenant on Civil and Political Rights (ICCPR), which the U.S. has signed and ratified. Article 25 of the ICCPR provides that every citizen shall have the right to vote and be elected at "genuine" periodic elections, which shall be by universal and equal suffrage, without "unreasonable restrictions."

What does this language mean, specifically? In a 1996 memorandum analyzing the ICCPR, the U.N. Committee on Human Rights offered further clarification. It found that "states must take effective measures to ensure that all persons entitled to vote are able to exercise that right." It added that any "abusive interference" with registration or voting, as well as coercion of voters, should be prohibited by penal laws, and those laws should be strictly enforced. Finally, it made clear that there should be "independent scrutiny of the voting and counting process so electors have confidence in the security of the ballot and the counting of the votes."

Enforcing Treaty Law: U.N. Committees and U.S. Courts

If this treaty law is broken in the November 2 election, how can it be enforced?

First, with respect to each of the treaties described above, there is a U.N. Committee that investigates complaints under the agreements, and might be a possible avenue for relief.

For example, there is the Human Rights Committee of the UN, which oversees the ICCPR, and includes a U.S. representative.

That Committee has already considered several election-related complaints regarding other U.N. member states. In 1995, for instance, it ruled that it is incompatible to both hold an elected office and an appointed position in the Netherlands. In another case, also from the Netherlands, the Committee imposed sanctions upon a police officer who "attacked the physical integrity" of a political demonstrator.

Litigants may also consider suing directly under the relevant treaty. Federal courts have jurisdiction to hear any disputes regarding federal law. And treaties, under the Constitution, are federal law just as surely as statutes - and the Constitution itself - are. Although a bit more unusual, suits for injunctive relief to force compliance - or remedy non-compliance - with treaty provisions thus should not be ruled out.

In Bush v. Gore, the Supreme Court made clear that the Constitution's Equal Protection doctrines govern election details such as vote-counting, and can and will be enforced. Shouldn't the same be true of the doctrines set forth in treaties the U.S. has signed, which are also the law of the land?

Organizations Monitoring Elections: U.N. Guidelines, and November 2 Participants

Building on this body of international law, the U.N. has developed guidelines that prescribe an independent electoral authority to oversee all voting.

Similarly, a small army of non-governmental organizations (NGOs) have turned this law into practice, by developing standards to determine whether elections meet the "periodic, genuine and contested" standard in the UDHR and other documents. Organizations such as the National Democratic Institute for International Affairs, Freedom House and others have created tools for evaluating elections around the world.

Former President Jimmy Carter -- on behalf of the Atlanta-based Carter Center, which monitors elections around the globe -- has said that some new U.S. voting systems do not meet international standards "even as many other nations are conducting elections that are internationally certified to be transparent, honest and fair."

Granted, international law does not recognize an obligation on States to open their borders to international inspectors. Yet the U.S. ought to welcome international monitors. And indeed, a number of different international monitors will be observing U.S. elections. Taken together, these initiatives represent the largest effort yet to monitor U.S. voting practices in the international arena.

One hundred and fifty observers from the Organization for Security and Cooperation in Europe (OSCE), a 55-nation group in which the U.S. participates, will spend the next few weeks in the U.S. (In recent months the group has monitored elections in diverse countries, including Bosnia, Russia and Ukraine.) As it has routinely done, the White House invited the OSCE as part of a standing offer among member groups. This time, however, for the first time, the group accepted.

Meanwhile, another monitoring team is being assembled by a U.S. organization called Global Exchange. Global Exchange has brought in elections experts from many other countries - and they have already made excellent points about how U.S. elections fall short of international standards.

For instance, Canadian monitor David MacDonald - after visiting Missouri, where the Secretary of State, a Republican, is also the chief elections monitor as well as a candidate for governor --expressed shock that partisan officials run U.S. elections. MacDonald noted that requiring election officers to be non-partisan, professional, neutral public servants "is as close as you can get in democratic or electoral terms to a universal norm."

In addition, a coalition of American NGOs recently asked the U.N. Economic and Social Council (ECOSOC) to provide its own set of international observers. ECOSOC's role is to promote higher standards of living, full employment, and economic and social progress; identify solutions to international economic, social and health problems; and encourage respect for human rights and fundamental freedoms.

Kofi Annan Should Have Granted the NGOs Request for A U.N. Monitoring Team

Before contacting ECOSOC, the NGOs had approached U.N. Secretary General Kofi Annan. (Annan had earlier turned down a similar request by more than a dozen members of the U.S. Congress.)

The NGOs believed that an official U.N. team would have a more in-depth understanding of the international legal issues than would the OSCE and other monitors. The organizations also believed that a U.N. monitoring team would have more muscle behind it.

However, at this point, it is OSCE - not U.N. - monitors who are likely to respond to the NGOs' request. And that's a shame. It is understandable that Kofi Annan would not want to appear to be doing an "end run" around President Bush. Yet Annan should instead have worked with the President to open the U.S. to monitors.

After all, the U.N. teamed up with the government of Afghanistan in the Joint Electoral Management Body to supervise the election and provide some semblance of a transparent election process. Unless it similarly teams up with the U.S. and other powerful countries that suffer election turmoil, the U.N. endorses a double standard: Powerful countries are not monitored, and can do what they choose, but other countries are monitored carefully and paternalistically.

President Bush Should Have Welcomed U.N. Monitors

But it is not just Annan who is at fault. Because of the high stakes of this election, and the international attention focused on the United States, President Bush, too, should have welcomed this opportunity to show the world how America respects - or in some cases, may not fully respect -- the rule of law.

This is especially true because the U.S. and the U.N. have been busy promoting the rule of law in places like Afghanistan and Iraq. Unless the U.S.'s own elections are admirably fair and just, the U.S. will be accused - rightly - of hypocrisy in holding up election ideals for other countries that it does not meet itself. And if November 2 is fair and just - as it ought to be - then we should want the whole world to see that.

As a president who has staked his foreign policy agenda on "spreading liberty" and expanding democracy abroad, one would think that President Bush would want monitors here, to see how important and effective the U.S. system is.

The presence - and approval - of monitors in substantial numbers would help convince other countries of the merits and strengths of our constitutional democracy. Conversely, without a substantial set of international monitors, the U.S. election is likely to be viewed through other countries' citizens' eyes with skepticism.

Public trust in the integrity of U.S. elections was severely compromised in 2000. By applying international legal standards guaranteeing truly free and fair elections, U.N. monitors could have helped restore Americans', and the world's, trust in our constitutional democracy. We should have invited them in, in great numbers.

Noah S. Leavitt, an attorney and author, plans to be a poll-watcher in a large Midwestern swing state on November 2. Leavitt can be contacted at

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