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AMERICAN BAR ASSOCIATION
ADOPTED BY THE HOUSE OF DELEGATES
AUGUST 3-4, 2015
RESOLUTION
RESOLVED, That the American Bar Association supports observation of elections in the
United States by observers duly selected by the Organization for Security and Cooperation in
Europe (OSCE), and other international organizations of which the United States is a member;
FURTHER RESOLVED, That the ABA urges federal, state, local, territorial and tribal
legislative bodies and governmental agencies to enact laws and adopt rules, regulations and
policies that expressly permit the direct observation of the election process by OSCE observers;
and
FURTHER RESOLVED, That the ABA urges federal, state, local, territorial and tribal
elected officials and political leaders to welcome accredited international election observers of
the OSCE and support them in their voting observation missions in accordance with the agreed
commitments of the United States Government as a participating State in the OSCE.
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REPORT
I.
INTRODUCTION
The Organization for Security and Cooperation in Europe (OSCE) is the “world’s
largest security-oriented intergovernmental organization.” There are 57 participating states in
the OSCE. The United States (U.S.) is a participating state, and an original founder of the
OSCE. Election monitoring is one of the various areas in which the OSCE is engaged. As part
of their OSCE commitments, all participating states agree to allow for observation of their own
elections by observers recruited from the other OSCE countries. These commitments are
political agreements of the U.S. Government, but are not legally binding obligations under a
treaty or international agreement. This mutual commitment to election observation is an
important tool for promoting democracy.
U.S. observers routinely participate in missions to observe the elections of the other
OSCE countries. In return, international election observers from the OSCE have observed
general elections in the United States, at the invitation of the U.S. State Department, from 2002
to 2012. In 2010, the National Association of Secretaries of State (NASS) passed its most recent
resolution encouraging federal, state and local election officials to permit international
observers access to polling places.1
Observers of elections, including those from the OSCE, are bound by the Declaration of
Principles for International Observation (Principles) and the Code of Conduct for International
Observers (Code). OSCE, through the Office of Democratic Institutions and Human Rights
(ODIHR) endorsed the Principles and Code in 2005. The Declaration states: “International
election observation, which focuses on civil and political rights, is part of international human
rights monitoring and must be conducted on the basis of the highest standards for impartiality
concerning national political competitors and must be free from any bilateral or multilateral
considerations that could conflict with impartiality.” One of the principles is “(i)nternational
election observation missions must actively seek cooperation with host country electoral
authorities and must not obstruct the election process.” Principles, ¶ 10. The Code further
instructs observers to respect the laws and authority of electoral bodies and not to obstruct the
election process. Each observer is required to read, understand and sign a pledge to follow the
Code.
In October 2012, the Attorney General of Texas, citing Texas law that does not provide
for observation by representatives of international organizations, publicly threatened to arrest
OSCE election observers if they attempted to enter polling locations. The threat of arrest was
widely reported in the media and was interpreted as an expression of hostility toward
international election observers. The Governor of Texas made similar statements, as did the
Iowa Secretary of State.
1
http://www.nass.org/component/docman/?task=cat_view&gid=82&limit=50&order=hits&dir=DESC&limitst
art=0&Itemid.
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OSCE observation is consistent with the American Bar Association’s (ABA) mission
and goal to “advance the rule of law at home and throughout the world.” The OSCE observes
elections in all participating countries, not just those transitioning to democracy. Suspicion
toward OSCE election observers is unwarranted and potentially damages the perception of the
electoral process in the United States. Forces opposed to legitimate democratic elections outside
the United States can be emboldened by statements of state officials that call into question the
legitimacy and impartiality of OSCE observation. A clear statement from the ABA on the issue
of international election observation of U.S. elections is needed in order to support the
important work of the OSCE and other international organizations, improve the quality of U.S.
elections through observation and reporting by international observers, and protect the
credibility of the ABA’s own efforts to promote the rule of law abroad. The ABA recognizes
that some current state laws may be interpreted by some as not being compatible with OSCE
observation. The ABA urges states with these views to consider amending local laws and
regulations consistent with permitting full OSCE observation.
II.
BRIEF HISTORY OF THE OSCE AND U.S. PARTICIPATION
The OSCE is one of the legacies of the Cold War. In 1973, during a period of détente
between the U.S. and the Soviet Union, 35 countries participated in the newly formed
Conference on Security and Cooperation in Europe (CSCE) to discuss a variety of security
issues. The Helsinki Final Act, the concluding document of the conference, enumerated a set of
political commitments undertaken by each country to provide a certain level of conduct for its
citizens in the areas of politics and the military, the economy and the environment, and human
rights.
From 1975 with the publication of the Helsinki Final Act to 1990 with the fall of the
Berlin Wall, the CSCE served primarily as a forum for periodic conferences that addressed
countries’ adherence to, and implementation of, past commitments and facilitated the negotiation
of new commitments. Responding to the end of the Cold War and the breakup of the Soviet
Union and Yugoslavia, the CSCE was reorganized into a permanent institution with an
administrative structure and renamed the OSCE in order to better manage the new security
challenges facing Europe. Since then, the OSCE has grown to include 57 participating countries,
becoming the largest regional security organization aimed at strengthening and fostering
cooperation and development in the three key areas of politico-military affairs, economic and
environmental affairs, and human rights.
The U.S. was a founding member of the CSCE and continues to play an important role
within the OSCE. Specifically, it actively participates in three bodies of the OSCE: the Joint
Consultative Group on the Treaty on the Conventional Armed Forces in Europe; the Forum for
Security Cooperation and its Conference and Security Building Measures; and the Open Skies
Consultative Commission and the implementation of the Treaty on Open Skies. The U.S. also
supports the work done by other OSCE agencies including ODIHR.
ODIHR is a body within the OSCE that is tasked with addressing a broad range of
human rights, rule of law, and discrimination issues and providing resources and aid to countries
to enable them to raise their standards. One of the main areas of the ODIHR’s work is in
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election observation. Committed to ensuring that “elections respect fundamental freedoms and
are characterized by equality, universality, political pluralism, confidence, transparency and
accountability,” ODIHR sends election observer teams to all OSCE-participating countries.2
The basis for these observations is contained in the 1990 Copenhagen Document that
helped transition the OSCE into a post-Cold War institution. The document contains a list of
election standards that countries must uphold when conducting democratic elections... 3 To
ensure compliance with these standards, the countries also promise to allow for international
monitoring of their elections. To guarantee legitimacy, impartiality, and non-interference in all
participating countries, OSCE election monitoring teams are required to comply with all national
laws and a strict internal conduct codes including the Principles and Code, discussed above.
This type of election monitoring and assistance was initially directed primarily towards
countries transitioning to democracy after the fall of communism. However, the observation of
elections in well-established democracies with a history of free and fair elections has become
routine for the ODIHR. Aside from countries’ obligation to allow unfettered access to the
monitoring teams and commitment to the continued promotion of high election standards, even
established democracies can benefit from international expertise and best practices to help rectify
any problems that may arise during the election period. Conversely, observation provides an
opportunity for international observers to learn from the U.S. expertise in the conduct of regular,
free and fair elections.
The U.S. has been a willing participant in OSCE election observations since 2002, when
the OSCE monitoring team reported on the Congressional elections. Teams were sent to the U.S.
again in 2004 for the general election, 2006 for the Congressional elections, 2008 for the general
election, 2010 for the Congressional elections, and in 2012 for the general election.
Many states permit OSCE observers access to their polling places. 4 The most recent
OSCE observation mission, in 2012, encountered resistance from several states. In the U.S., the
right to monitor elections is provided for in individual state laws; not all states, however,
expressly permit international monitors. Additionally, members of the monitoring team—
consisting of 13 election experts from 10 OSCE countries based in Washington, D.C. and 44
election observers stationed around the country—were not welcomed in all states and were
actively impeded from accessing polling stations.5 In Texas, the Attorney General published a
“Elections,” ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE, accessed on 27 April 2014,
www.osce.org/odihr/elections.
3 “Threat of criminal prosecution of observers at odds with established co-operation on United States elections,
ODIHR Director says,” ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE, 24 October 2012,
www.osce.org/odihr/96639.
4 Missouri, New Mexico, North Dakota, South Dakota, and the District of Columbia explicitly permit access to
international observers. California, Oregon and West Virginia allow observers of the counting and tabulation
process as part of the general public access to these processes. “United States of America – General Elections 6
November 2012 – OSCE/ODIHR Limited Election Observation Mission Report,” page 19, ORGANIZATION FOR
SECURITY AND COOPERATION IN EUROPE, 13 February 2013,p. 19
www.osce.org/odihr/election/99573.(OSCE/ODIHR 2014 Report).
5
Alabama, Alaska, Florida, Iowa, Michigan, Mississippi, Ohio, Pennsylvania, Tennessee, and Texas. Id.
2
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letter threatening OSCE observers with criminal charges if they continued to pursue their
mission.6
Those states which challenge the OSCE observation mission are acting contrary to the
U.S. commitments as a member of the OSCE to ensure that states have incorporated all of the
requirements of the 1990 Copenhagen Document into their legislation. These states’ approach is
also contrary to the previously established cooperation between the U.S. and the OSCE and
harmful to the relationship between the U.S. and the OSCE. Most importantly, it is detrimental
to the legitimacy that OSCE election observation teams have in other, less-democratic OSCE
member states.
III.
NUMEROUS AMERICAN BAR ASSOCIATION RESOLUTIONS
POLICIES SUPPORT ELECTION ADMINISTRATION ISSUES
AND
For decades the ABA has offered insight and advice on matters pertaining to the
administration of elections. The ABA maintains an interest in promoting and improving the
integrity of elections, in line with international standards. The promotion of observation by the
OSCE is an extension of these efforts by the ABA.
a)
The ABA’s Support Regarding Election Administration.
In 1989, the ABA adopted the Ballot Integrity Standards Applying to Election Officials
(Standards). The Standards addressed proposed rules and guidelines for voter registration,
absentee voting, Election Day officials and ballot integrity.
The Standards also included guidelines for poll watchers. Under the Standards, poll
watchers could be authorized to represent political parties, candidates and civic groups. They did
not have to live in the precinct or election jurisdiction. The Standards advised that poll watchers
should be permitted to observe all official acts and records at polling sites, challenge unqualified
voters and challenge improper voting practices. The Standards encouraged bar associations to
encourage attorneys to serve as election officials, and for bar associations to assign attorneys to
assist with programs that ensure the integrity of the election process.
Because of the widely reported issues in the 2000 presidential elections, the ABA
considered election administration anew and adopted the Election Administration Guidelines in
August 2001 (the 2001 Guidelines). The 2001 Guidelines addressed voting education and rights,
voter registration, ballot integrity and post-election issues. The 2001 Guidelines provide similar
recommendations regarding poll watchers as the Standards, though notably the Guidelines add
that state and federal government must ensure that voters are not challenged in contravention of
the Civil Rights Act and the Voting Rights Act.
In August 2005 the Association adopted the Election Administration Guidelines and
Commentary resolution to supplant the Standards and the 2001 Guidelines (Current Guidelines).
“Attorney General Abbott Tells International Election Observers to Abide by Texas Election Laws, ATTORNEY
GENERAL OF TEXAS GREG ABBOTT, 23 October 2012,
https://www.texasattorneygeneral.gov/oagnews/release.php?id=4195.
6
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The Current Guidelines were updated again in 2008 and 2009 to respond to problems that
emerged in administration of subsequent elections. The ABA has recommended that all election
officials ensure the integrity of the election process through the adoption, use, and enforcement
of the Current Guidelines. Further, the ABA urges federal, state, local and territorial government
provide adequate funding to ensure the integrity and efficiency of the electoral process.
b)
The ABA’s Support Regarding Voting Rights.
Over the years the ABA has adopted a number of resolutions that pertain to voting rights.
In addition to the voting rights provisions contained in the Standards and the Current Guidelines,
the ABA has adopted resolutions that concern voting rights for specific groups of people. For
example, in 1992 the ABA adopted a resolution supporting amendment of the U.S. Constitution
to provide for people living in U.S. territories to be able to vote in national elections. In 1993 the
ABA adopted a resolution to support efforts to ensure the participation of homeless persons in
elections. In 2007 the ABA adopted a resolution urging the government to improve the
administration of elections to facilitate voting for people with disabilities. In addition, noting
that members of minority groups still face discrimination in exercising their right to vote, the
ABA adopted a resolution in 2005 urging Congress to reauthorize the Voting Rights Act.
c)
The ABA’s Support Regarding Ballot Integrity.
The ABA has addressed ballot integrity in both the Standards and the Current Guidelines.
The ABA has also adopted resolutions regarding use of provisional ballots. In August 2003, the
Model Statutory Language on Provisional Balloting and Commentary were developed to inform
and guide drafting of the earliest provisional ballot statutes by providing uniform standards for
affidavits, presentation and verification of provisional ballots. In the resolution amending the
Current Guidelines that was adopted in 2009, changes were made to include greater detail
concerning the administration of provisional ballots on Election Day.
d)
The ABA’s Support Regarding Voter Registration.
The ABA has made a concerted effort to address voter registration. In August 1974 the
ABA adopted a resolution on voter registration by mail. In 1990, noting a continued reduction in
voter participation in elections, the ABA adopted a resolution to: support efforts to increase voter
registration through state and local agencies, to make voting easy and convenient, and to support
voter education.
In August 1999 the ABA adopted a resolution opposing legislation that would repeal the
National Voter Registration Act. Further, to increase the number of registered voters and the
number of registered voters voting in elections, this 1999 resolution supported: voter registration
by mail, additional registration facilities at easily accessible locations and open during
convenient times, and provision by employers of time and opportunity for employees to vote.
In August 2010 the ABA adopted a resolution to support state and federal initiatives to
modernize and improve voter registration practices, databases and networks. The resolution
noted that the stability and reliability of our voter registration systems is the foundation of our
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ability to ensure that citizens are afforded the right and opportunity to vote in our elections. The
2000 presidential election exposed the weaknesses in the technologies for vote recording and
tabulation and for maintaining voter registration files. Accordingly, the resolution was focused
on technical and technological improvements.
Finally, in 2011 the ABA adopted a resolution to support efforts to improve voter
registration. The resolution focused on measures to ensure accuracy of voter registration rolls
and streamline the procedures by which changes to voter registration rolls are made.
IV.
IT IS IMPORTANT FOR THE ABA TO SUPPORT THE PRESENCE OF OSCE
OBSERVERS IN THE U.S. TO PROTECT THE ABA’S CREDIBILITY AND
REPUTATION IN PROMOTING THE RULE OF LAW ABROAD
According to the ABA: “Addressing this global rule of law deficit is not only the most
important calling of the world’s legal community; it must also become an urgent priority for
world leaders, international institutions and citizens committed to making this a just, peaceful
and prosperous world.”7 Therefore, the ABA has been actively engaged in promoting the rule of
law in foreign countries since 1990 when it established the Central European and Eurasian Law
Initiative (CEELI) after the fall of the Berlin Wall. The CEELI program sent ABA volunteers to
many of the OSCE member states to provide legal advice and assistance to governments and
community leaders. In 2007, the ABA consolidated its various overseas rule of law programs,
including CEELI, into the ABA Rule of Law Initiative (ROLI).
The ABA’s CEELI and ROLI programs have worked closely with OSCE field missions
throughout Eastern Europe and Central Asia, including work to support election-monitoring
teams in Armenia in 2007 and the training of judges in Moldova in 2008. The Helsinki Final
Act, and other OSCE documents, is routinely cited in ABA ROLI reports on issues related to
human rights and the rule of law.
ABA ROLI currently implements legal reform programs in roughly 60 countries in
Africa, Asia and the Pacific, Europe and Eurasia, Latin America and the Caribbean, and the
Middle East and North Africa.
This work is jeopardized by attacks on international institutions, such as the OSCE, by
political leaders in the United States. Dictators, tyrants and those opposed to the defense of
liberty and the delivery of justice are emboldened by statements made by prominent Americans
that undermine the credibility of people who are legitimately promoting the rule of law by
observing elections in the U.S. ABA volunteers working in foreign countries, sometimes with
governments that are hostile to the very principle of the rule of law, are also undermined by such
attacks. It is important for the ABA to express its strong support for the presence of OSCE
observers in the United States in order to protect the ABA’s credibility and reputation in
promoting the rule of law abroad.
7
http://www.americanbar.org/advocacy/rule_of_law/about/origin_principles.html.
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V.
CONCLUSION
Therefore, for the foregoing reasons, the ABA should fully support observation of
elections in the U.S. by the OSCE, and other international organizations of which the U.S. is a
member. Additionally, the ABA should: 1) urge all federal, state, territorial, and local political
leaders and elected officials to welcome international election observers and to provide access to
the election process to the fullest extent of the law; 2) urge all federal, state, territorial, and local
legislative bodies and governmental agencies to enact laws and adopt rules, regulations and
policies that expressly permit the direct observation of the election process by OSCE observers
who have been invited by the U.S. State Department to observe U.S. elections; and 3) support the
OSCE as a legitimate international organization working to promote the rule of law in the United
States and abroad.
Respectfully Submitted,
Marcelo E. Bombau
Chair, Section of International Law
August 2015
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GENERAL INFORMATION FORM
Submitting Entity: Section of International Law
Submitted By: Marcelo Bombau, Chair, Section of International Law
1. Summary of Resolution(s).
The proposed Resolution urges the American Bar Association to support observation of
elections in the United States by observers duly selected by the Organization for Security
and Cooperation in Europe (OSCE), and other international organizations of which the
United States is a member. It would also have the ABA urge all federal, state, territorial,
and local legislative bodies and governmental agencies to enact laws and adopt rules,
regulations and policies that expressly permit the direct observation of the election
process by OSCE observers, and in addition, to urge all federal, state, territorial, and local
elected officials and political leaders would welcome accredited international election
observers of the OSCE and support them in their voting observation missions in
accordance with the agreed commitments of the United States Government as a
participating State in the OSCE.
2. Approval by Submitting Entity.
The Council of the Section of International Law approved this recommendation and
resolution at its Meeting on February 6, 2015 and the Council of the Standing Committee
on Election Law approved this recommendation and resolution at its Meeting on April
16, 2015.
3. Has this or a similar resolution been submitted to the House or Board previously?
No.
4. What existing Association policies are relevant to this resolution and how would they be
affected by its adoption?
In 1989, the ABA adopted the Ballot Integrity Standards Applying to Election Officials
(Standards), which addressed proposed rules and guidelines for voter registration,
absentee voting, Election Day officials and ballot integrity along with guidelines for poll
watchers. The ABA adopted Election Administration Guidelines in August 2001 (the
2001 Guidelines), which address voting education and rights, voter registration, ballot
integrity and post-election issues. In August 2005 the Association adopted the Election
Administration Guidelines and Commentary resolution to supplant the Standards and the
2001 Guidelines (Current Guidelines). The Current Guidelines were updated again in
2008 and 2009 to respond to problems that emerged in administration of subsequent
elections. The ABA has adopted a number of resolutions that support voting rights of
those in U.S. territories to vote in national elections (adopted in 1992); urge more
participation of homeless persons (adopted in 1993); encourage better minority groups
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voting representation by U.S. government reauthorization of the Voting Rights Act
(adopted in 2005); and urge government improvement of the administration of elections
to facilitate voting for people with disabilities (adopted in 2007). In August 2003, the
Model Statutory Language on Provisional Balloting and Commentary was adopted to
protect ballot integrity. In August 1974 the ABA adopted a resolution on voter
registration by mail. In 1990, noting a continued reduction in voter participation in
elections, the ABA adopted a resolution to: support efforts to increase voter registration
through state and local agencies, to make voting easy and convenient, and to support
voter education. In August 1999 the ABA adopted a resolution opposing legislation that
would repeal the National Voter Registration Act. In August 2010 the ABA adopted a
resolution to support state and federal initiatives to modernize and improve voter
registration practices, databases and networks. Finally, in 2011 the ABA adopted a
resolution to support efforts to improve voter registration. The resolution focused on
measures to ensure accuracy of voter registration rolls and streamline the procedures by
which changes to voter registration rolls are made.
5. If this is a late report, what urgency exists which requires action at this meeting of the
House?
N/A.
6. Status of Legislation. (If applicable)
None applicable.
7. Brief explanation regarding plans for implementation of the policy, if adopted by the
House of Delegates.
If this recommendation and resolution are approved by the House of Delegates, the
sponsors will use that approval to be able to more strongly support the credibility of
OSCE observers not only in the United States, but also abroad. ABA’s Rule of Law
Initiative has worked with OSCE field missions in the past in an effort to promote the
rule of law and fair elections practices, but this work is jeopardized by attacks on
international institutions, such as the OSCE. With the ABA’s support, the sponsors can
more readily urge the acceptance of OSCE election monitors in the U.S., especially given
that the U.S. was a founding member of the institution, which will lend more credibility
to their efforts and reputations abroad.
8. Cost to the Association. (Both direct and indirect costs)
None
9. Disclosure of Interest. (If applicable)
None applicable.
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10. Referrals
This recommendation and resolution has been referred to the Standing Committee on
Election Law and the Section of State and Local Government Law, both of which
approved co-sponsorship.
11. Contact Name and Address Information. (Prior to the meeting)
M Catherine Vernon
7235 Villa D Este Dr
Sarasota, FL 34238
Email: mcvernon2@gmail.com
Joseph P Federici III
2434 Owen Drive
Wilmington, DE 19808
Email: joe.p.federici@gmail.com
Elizabeth Turchi
The Hague, NL
Email: lizturchi@gmail.com
12. Contact Name and Address Information. (Who will present the report to the House?)
Glenn P. Hendrix
Arnall Golden Gregory LLP
Suite 2100
171 17th Street, N.W.
Atlanta, GA 30363
Phone: 404/873-8692
E-Mail: glenn.hendrix@agg.com
Jeffrey Golden
London School of Economics
Houghton Street
London, WC2A 2AE
United Kingdom
Phone: 447785500811
E-mail: j.b.golden@lse.ac.uk
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EXECUTIVE SUMMARY
1.
Summary of the Resolution
The proposed Resolution would have the American Bar Association support observation
of elections in the United States by observers duly selected by the Organization for
Security and Cooperation in Europe (OSCE), and other international organizations of
which the United States is a member. It would also have the ABA urge all federal, state,
territorial, and local legislative bodies and governmental agencies to enact laws and adopt
rules, regulations and policies that expressly permit the direct observation of the election
process by OSCE observers, and in addition, to urge all federal, state, territorial, and local
elected officials and political leaders would welcome accredited international election
observers of the OSCE and support them in their voting observation missions in
accordance with the agreed commitments of the United States Government as a
participating State in the OSCE.
2.
Summary of the Issue that the Resolution Addresses
All participating states agree to allow for observation of their own elections by observers
recruited from the other OSCE countries; the U.S. is a participant of OSCE and original
founding member. These commitments are political agreements of the U.S. Government,
but are not legally binding obligations under a treaty or international agreement. This
mutual commitment to election observation is an important tool for promoting
democracy.
The U.S. has been a willing participant in OSCE election observations since 2002, but the
most recent OSCE observation mission, in 2012, encountered resistance from several
states. In the U.S., the right to monitor elections is provided for in individual state laws;
not all states, however, expressly permit international monitors. Those states which
challenge the OSCE observation mission are acting contrary to the previously established
cooperation between the U.S. and the OSCE and harmful to the relationship between the
U.S. and the OSCE. Most importantly, it is detrimental to the legitimacy that OSCE
election observation teams have in other, less-democratic OSCE member states.
3.
Please Explain How the Proposed Policy Position will address the issue
ABA’s Rule of Law Initiative has worked with OSCE field missions in the past in an
effort to promote the rule of law and fair elections practices, but this work is jeopardized
by attacks on international institutions, such as the OSCE. With the ABA’s support, the
sponsors can more readily urge the acceptance of OSCE election monitors in the U.S.,
which will lend more credibility to their efforts and reputations abroad. A clear statement
from the ABA on the issue of international election observation of U.S. elections is
needed in order to support the important work of the OSCE and other international
organizations, improve the quality of U.S. elections through the observation and reporting
by international observers, and protect the credibility of the ABA’s own efforts to
promote the rule of law abroad.
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4.
Summary of Minority Views
No minority views have been identified in opposition.
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