P.O. Box 5675, Berkeley, CA 94705 USA
The Right to Vote: A Fundamental Right that Requires Protection
Contact Information:
Troy C. Ware, Frank C. Newman Intern
waretc@hotmail.com
Representing Human Rights Advocates through
University of San Francisco’s
Frank C. Newman International Human Rights Clinic
Prof. Connie de la Vega
Tel: (001) 415-422-6961
I.
Introduction
Human Rights Advocates (“HRA”)  seeks to ensure that the right to vote is
guaranteed to all citizens as mandated per international laws and obligations. HRA
supports the view that “voting rights remain not only the paradigmatic expression of firstclass citizenship and social standing, but also the crucial currency of democratic politics
and the precondition for instrumental public action on other problems.”1 However the
even in the most developed countries the right to vote is subject to abuses, as complex
election systems exacerbate problems. Electronic voting represents an example of a
complex system that may disenfranchise because of the lack of adequate safeguards,
unreliability of machines or potential for human error.
The Universal Declaration of Human Rights (“UDHR”) provides for public
participation in government and voting rights. Article 21 of the UDHR states:
(1) Everyone has the right to take part in the government of his country,
directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country
(3) 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.2
The International Covenant on Civil and Political Rights (“ICCPR”) codifies the
principles of the right to vote first pronounced in the UDHR in Article 25, which states
that every citizen shall have the right
[to] take part in the conduct of public affairs, directly or though freely
chosen representatives; [t]o vote and to be elected at genuine periodic
elections which shall be by universal and equal suffrage and shall be held
by secret ballot, guaranteeing the free expression of the will of electors;
[t]o have access, on general terms of equality, to public service in his
country.3
 This report relied heavily on the contributions of Yasmin S. Khayal and Abdul Hamid Bashani Khan.
Yasmin Khayal completed the first complete HRA Report on voting rights in 2006. Portions of that report
are incorporated in this 2007 report. Abdul Hamid Bashani Khan provided information vital to portions
this report that address Pakistan.
1 Jamin Raskin, From Slave Republic to Constitutional Democracy: The Continuing Struggle for the Right
to Vote, Poverty and Race, Poverty & Race Research Action Council, Vol. 13. No. 6, November/December
2004.
2 G. A. Res. 217A (III), U.N. Doc. A/810 (1948) [hereinafter UDHR].
3
International Covenant on Civil and Political Rights, Art. 25, Dec. 16, 1966, 999 U.N.T.S. 171
[hereinafter ICCPR].
1
Additionally, the Human Rights Committee (“HRC”) adopted the General
Comment 25 to the ICCPR, which further defines the right to vote and makes clear that
violations of these individual rights justify claims under the first Optional Protocol.
Moreover, the right to public participation and to vote is protected by Protocol One to the
European Convention on Human Rights, Article 23 of the American Convention on
Human Rights, and Article 13 of the African Charter of Human and People’s Rights.
Article 7 of the Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) protects the right of women to vote on an equal basis with men.
Furthermore, Article 5 of the International Convention on the Elimination of All Forms
of Racial Discrimination (“CERD”) requires States to guarantee the right to vote “without
distinction as to race, colour, or national or ethnic origin.”4
Nonetheless, despite the existence of the provisions of Article 25 of the ICCPR
and the HRC’s General Comment 25, international law standards and obligations on the
right to vote are not consistently followed. The right to vote protects and encompasses
other crucial rights as well. The right to participate in free and fair elections implicates
basic human rights such as the right to freedom of expression, the right to freedom of
opinion, the right to peaceful assembly, and the right to freedom of association. The right
to vote gives effect to other rights, such as the right to participate in one’s government, to
be free from discrimination on political grounds, and many others.
The right to vote is infringed upon in various ways; this report will only discuss a
few. Specifically, this paper will showcase how the right to vote is infringement upon
through the operation of law, the widespread use of fraud and violence, the use of new
technology such as electronic voting, and media bias. Finally, recognizing that no
intergovernmental organization has addressed worldwide infringements of right to vote
before, this report seeks to persuade the Council to take a leadership role and address
violations on a worldwide basis.
II.
Derogation of the Right to Vote by Operation of Law
States are required to comply with all relevant treaties, standards, and obligations
and enable all their citizens to participate in the electoral process. However, many States
infringe upon the right to vote through the operation of law. This report will address the
4
Dec. 21, 1965, 660 U.N.T.S. 195, Art. 5 [hereinafter CERD].
2
use of national laws to infringe upon the right to vote as a result of criminal conviction,
political affiliation, as well as the resulting discriminatory effects of national laws on race
and gender.
a. Disenfranchisement as a Result of Criminal Conviction
As mentioned above, Article 25 of the ICCPR establishes that “every citizen”
shall have the right to participate in public affairs, to vote and hold office, and to have
access to public service.5 General Comment 25 of the HRC elaborates on these rights
with regards to criminal offenders, stating that “[t]he grounds for … deprivation [of the
right to vote] should be objective and reasonable. If conviction for an offence is a basis
for suspending the right to vote, the period of such suspension should be proportionate to
the offence and the sentence.”6 Laws and holdings in states around the world support the
idea that the right to vote is not a privilege, but a basic human right, to be infringed upon
only in the most exceptional of cases.
However many states, including the United States, do not follow this basic human
right and extend the right to vote to all mentally competent adults with the exception of
convicted criminal offenders. The United States Supreme Court case Richardson v.
Ramirez expresses the state of the law in the United States, where the Supreme Court
rejected a challenge to California’s disenfranchisement of convicted prisoners, and held
that the American Constitution’s 14th Amendment does not require states to provide a
“compelling” reason before denying convicted individuals the right to vote.7 This stance
has resulted in an arbitrary state of the law around the country, with an estimated 4.7
million Americans not eligible to vote.8 In addition, fourteen states permanently
disenfranchise convicts and ex-convicts, with six doing so for those convicted of a
felony, and eight for certain categories of offenses or for certain time periods.9 Only two
states do not participate in any disenfranchisement and permit inmates to vote.10 The
position held by the U.S. judicial system on the voting rights of convicted prisoners and
5
Id.
HRC General Comment 25, para. 14, U.N. Doc. CCPR/C/21/Rev.1/Add.7 (1996) [hereinafter General
Comment].
7
418 U.S. 24 (1974).
8
Marc Mauer and Tushar Kansal, Barred for Life: Voting Rights Restoration in Permanent
Disenfranchisement States, The Sentencing Project 1 (2005).
9
Id.
10
Those two states are Maine and Vermont. Felony Disenfranchisement Laws in the United States, Briefing
Sheet, The Sentencing Project, available at http://www.sentencingproject.org/pdfs/1046.pdf.
6
3
ex-convicts is a minority around the world, denounced in international law and
increasingly abandoned by most States.
The European Court of Human Rights recently held that disenfranchisement of
criminal offenders is a violation of Article 3 of Protocol 1 of the European Convention on
Human Rights,11 which states, that “[t]he High Contracting Parties undertake to hold free
elections at reasonable intervals by secret ballot, under conditions which will ensure the
free expression of the opinion of the people in the choice of the legislature.”12 In Hirst v.
UK,13 the applicant was a convicted prisoner who challenged the UK’s law denying him
the right to vote as a result of his status. The Court held that its establishment of
individual rights guarantees14 runs counter to automatic disenfranchisement based on an
individual’s status as a convicted prisoner, and while the court allows for a wide margin
for states to take measures disenfranchising prisoners if such measures are proportional
and have legitimate aims,15 the Court found that “[s]uch a general, automatic and
indiscriminate restriction on a vitally important Convention right must be seen as falling
outside any acceptable margin of appreciation, however wide that margin might be.”
Likewise, Canada is in accord with the rationale that barring prisoners from
voting runs counter to principles of democratic rule and rule of law. In Sauvé v. the
Attorney General of Canada, the Canadian Supreme court held that the right to vote was
fundamental to democratic rule, with any limits infringing on that right to vote to be
subject to careful examination. The court found that the Canada Elections Act of 1985,
which denied the right to vote every person imprisoned serving a sentence of two years or
more was a violation of Articles 1 and 3 of the Canadian Charter of Rights and
Freedoms.16
11
Hirst v UK (No.2), Eur. Ct. H.R. no. 74025/01 (Oct. 6, 2005).
Protocol 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 3,
Mar. 20, 1952, 213 UNTS 262.
13
Hirst v UK (No.2), Eur. Ct. H.R. no. 74025/01, at 3.
14
The Court established individual guarantees including the right to vote and to stand for election in
Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2 March 1987, Series A no. 113, pp. 22-23, §§46-51.
Id. at §57.
15
Id. at §73.
16
Sauvé v. Attorney General of Canada (No.2) (cited in Hirst v UK (No.2), Eur. Ct. H.R. no. 74025/01 at
9). The Canadian Supreme court had earlier held struck down a legislative ban prohibiting all prisoners
from voting in Sauvé v. Attorney General of Canada (No.1), 2 SCR 438 (1992); legislative amendments
limiting the ban to those serving 2 years or more led to the current decision in Sauvé (No.2).
12
4
The Constitutional Court of South Africa has held twice that not only the
disenfranchisement of prisoners is a violation of South African and international law, but
the State has a positive obligation to enable the right to vote for prisoners. First in 1999
the Constitutional Court held in August v. Electoral Commission that the unqualified right
for every citizen to vote imposed positive obligations upon the legislature and the
executive to make reasonable arrangements for prisoners to vote, and that any limitations
imposed are allowed provided they were reasonable and justifiable.17 Recently in
Minister of Home Affairs v. NICRO,18 the Constitutional Court affirmed the principles
held in August, and held that the deprivation of the right to vote from prisoners serving a
sentence without the option of a fine was not allowed considering the insufficient
justifications given by the Ministry.19
The Human Rights Committee, while having not yet considered criminal
disenfranchisement laws in the United States, has found other States’ laws unreasonable
and disproportionate in considering the reports of those states. For example, the HRC
found Senegal laws excessive that deprive individuals of the right to vote who are
sentenced to “personal restraint or penal servitude.”20 Additionally while reviewing the
Hong Kong report, the HRC noted “that laws depriving convicted persons of their voting
right for periods of up to ten years may be a disproportionate restriction of the rights
protected by Article 25.21
b. Arbitrary Restrictions on Political Parties in Egypt
Egypt’s arbitrary use of the vague Political Parties Law to regulate licensing and
activities of political parties and disallow activity that contradicts “national unity”
resulted in the exclusion of many parties from the political process.22 The Political
Parties Law requires parties to notify a Political Parties Committee (“PPC”) upon starting
17
August v. Electoral Commission, 1999 (3) SA 1 (CC) (S.Afr.).
2004 (5) SA 1 (CC), available at http://www.sentencingproject.org/pdfs/southafrica-decision.pdf.
19
Id.
20
The Sentencing Project, U.S. Criminal Disenfranchisement under International Human Rights Law –
Losing the Vote, available at http://www.hrw.org/reports98/vote/usvot98o-06.htm. See Consideration of
Report by Senegal to the Human Rights Committee, CCPR/C/79/Add.11, Dec. 28, 1992, D (10).
21
Id. See Human Rights Committee, Comments on United Kingdom of Great Britain and Northern Ireland
(Hong Kong), U.N. Doc. CCPR/C/79/Add.57 (1995), para. 19.
22
HUMAN RIGHTS WATCH, MONOPOLIZING POWER, EGYPT’S POLITICAL PARTIES LAW 8 (2007).
18
5
operation at which point the PPC may suspend the activities of the party within ninety
days.23
Between 1977 and 2004, the PPC approved only two parties and rejected 63.24
The high number of rejected parties is not surprising given that the majority of seats on
the PPC are held by the ruling National Democratic Party and every member except one
is appointed by Egypt’s president.25 Even if a party overcomes the bias of the PPC it will
likely face additional harassment. The leader of the Ghad party, which was licensed in
2004, was kept in detention and released only briefly for the 2005 presidential election
before finding himself arrested again.26 In January 2007, a court upheld a decision
denying recognition to thirteen political parties.27 The law and its application does not
conform to the ICCPR right of all citizens to take part in the conduct of public affairs,
directly or indirectly through freely chosen representatives.”28
c. Discrimination as a Result of the Operation of Law
i. Racial Discrimination as a Result of Criminal Conviction Laws in
the US
In addition to the unreasonableness of disenfranchisement for the convicted,
another unfortunate result occurs from disenfranchisement. Disenfranchisement has been
proven to result in a gross racial impact on minorities, and such discrimination, however
indirect, is a violation of international law. The rate of conviction of racial minorities in
the United States is much higher than whites, consequently denying a higher proportion
of minorities the right to vote.29 This disparity contravenes Article 5 of CERD.
Additionally the General Comment emphasizes in paragraph 3 that Article 25 of
the ICCPR protects the rights of “every citizen,” and allows no distinctions on voting
rights between citizens on the “grounds of race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status.”30 The United
States practice of disenfranchisement of criminal offenders resulting in the
23
Id at 6.
Id at 8.
25
Id at 7.
26
Id at 13.
27
Challiss McDonough, Egyptian Court Rejects New Political Parties, VOICE OF AMERICA NEWS, Jan. 8,
2007, http://www.voanews.com/english/2007-01-08-voa49.cfm.
28
General Comment, supra note 5, para. 3.
29
Prisoner Voting, World Views, BBC NEWS, April 28, 2005, available at
http://news.bbc.co.uk/2/hi/uk_news/politics/vote_2005/frontpage/4490701.stm.
30
General Comment, supra note 5, para. 3.
24
6
disproportionate racial impact on minorities is a violation of international laws and
should be curtailed.
ii. Discrimination and Disenfranchisement Based on Gender in Saudi
Arabia and Yemen
Saudi Arabia conducted the first nationwide municipal elections in the country in
February of 2005. This was a positive development in a State where all citizens were
denied the right to vote. The elections however, still represented a setback for Saudi
women, by denying women the right to vote. This prohibition is contrary to Saudi
Arabia’s obligations to under Article 7 of CEDAW, which it ratified without reservations
to Article 7. Additionally the bar on women voters violates Saudi electoral laws, which
indicate that those eligible to vote to be “all citizens,” and not just men.
The Saudi Arabian interior ministry has explained that its actions towards’
women’s right to vote are as such because it does not “think that women’s participation is
possible.”31 Other reports have indicated that women were barred from voting in
municipal elections because there are not enough women electoral staff to run womenonly voter registration centers.32 However such an administration problem is not as
worrisome as reports of the interior minister indicating that the Election Committee
“expect[s] women to participate in elections in future stages, after conducting studies to
assess whether it is useful or not.”33 Nonetheless, authorities promise to allow women to
vote in the next municipal elections in 2009.34
Although Yemen deserves recognition for allowing women to participate in the
2006 Presidential and local elections, women faced considerable obstacles to meaningful
participation as voters, administrators and candidates.35 According to EU observers
women candidates received pressure from political parties, civil servants, electoral
officials, and family and tribe members to end their candidacy.36 Many women, forced to
run as independent candidates, could not avail themselves of the financial resources of
31
Saudi Women Barred From Voting, BBC NEWS, Oct. 11, 2004,
http://news.bbc.co.uk/2/hi/middle_east/3734420.stm.
32
Id.
33
Saudi Arabia: Women’s Exclusion from Elections Undermines Progress, Amnesty International, Nov.
17, 2004, available at http://news.amnesty.org/index/ENGMDE230152004.
34
How Democratic is the Middle East?, BBC NEWS, Sept. 9, 2005,
http://news.bbc.co.uk/2/hi/middle_east/3784765.stm#saudi.
35
EUROPEAN UNION, ELECTION OBSERVATION MISSION YEMEN 2006 FINAl REPORT 26 (2006).
36
Id at 27.
7
political parties as men did.37 As voters, only 42% of women were registered in
Yemen.38 Additionally, administration of the election was dominated by men. The
Supreme Commission for Elections and Referendum included no women members and
less than 5% of lower election officials consisted of women.39 Like Saudi Arabia, Yemen
is party to CEDAW.
III.
Derogation of the Right to Vote by Fraud and Violence
Even when there are no issues with States’ laws, derogation of the right to vote by
fraud and violence persists even in developed electoral systems. Frequently when fraud
occurs it is in violation of national and international law, and derogates the basic right to
vote. The problem usually persists when states fail to install adequate safeguards or even
strictly enforce penal laws forbidding such fraud. The HRC General Comment 25 made
note of such a potential problem, and obligates states to “take effective measures to
ensure that all persons entitled to vote are able to exercise that right…Any abusive
interference with registration or voting as well as intimidation or coercion of voters
should be prohibited by penal laws and those laws should be strictly enforced.”40
Abuses in the electoral system in the worst case scenario manifest themselves
through state sponsored or condoned intimidation or violence. The examples outlined
below illustrate the vital importance of improving election monitoring, enhancing voting
safeguards, and enforcing election laws, which can prevent such situations and enhance
the legitimacy of the electoral process.
a. Derogation of Voting Rights by Intimidation of Racial Minorities in
the United States
As mentioned above, Article 5 of CERD requires States to guarantee the right to
vote without distinction to race or color. However there are areas in the United States
where partisan operatives may challenge voters on their citizenship, age or residency. 41 In
the US State of Ohio in the 2004 presidential elections, it was alleged that Republican
Party challengers targeted polling stations where large numbers of African-Americans
37
Id at 27.
Id at 28.
39
Id.
40
General Comment, supra note 5, para. 11.
41
Two Big Legal Wins for Ohio GOP, CBS NEWS, Nov. 2, 2004, available at
http://www/cbsnews.com/stories/2004/11/02/politics/main652779.shtml.
38
8
came to vote.42 These actions conflict with international obligations, which require that
non-partisan poll workers determine an individual’s eligibility to vote. In 2006, African
American Voters in Virginia alleged phone calls instructing them not to vote or directing
them to incorrect polling stations.43
b. Derogation of Voting Rights by Fraud in Belarus
The 2006 presidential election in Belarus was marked by an atmosphere of
intimidation, harassment and compromised election administration. Some disturbing
aspects included campaign activity occurring at polling stations on behalf of the
incumbent, identical signatures observed on voting lists at polling stations, voting not
always taking place in secrecy, ballot boxes not always sealed and unauthorized persons
observed in polling stations directing poll workers.44 OSCE observers reported that
election officials frequently prevented them from standing close enough to truly observe
the counting process.45 In some instances observers did report observing the altering of
results.46
Campaigning proved difficult for candidates in the Belarus elections. Numerous
reports conveyed accounts of threats and harassment. The OSCE obtained reports that
authorities held over 200 campaign activists or authorized representatives of candidates
under detention or administrative arrest the day prior to the election.47 Just prior to the
election one opposition party leader was charged under an anti-terrorist law under the
allegation he was plotting a coup.48 Concurrently with these allegations security officials
announced that individuals participating in election day protests would be treated as
terrorists.49 These actions made it difficult to recruit and retain campaign staff 50 and
convey campaign messages to voters. This activity conflicts with Article 25’s core
provisions, which call for the ability to take part in public affairs and vote in genuine
elections by secret ballot that expresses “the will of the electors.”
42
Id.
Christian Davenport & Rosalind S. Helderman, Local Voting Proceeded Smoothly, But Long Lines
Delayed Md. Counts, WASHINGTON POST, Nov. 8, 2006, at A1.
44
ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE, INTERNATIONAL ELECTION
OBSERVATION MISSION: PRESIDENTIAL ELECTION REPUBLIC OF BELARUS – 19 MARCH 2006, at 13 (2006)
45
Id at 13.
46
Id at 3.
47
Id at 8.
48
Id.
49
Id at 9.
50
Id.
43
9
c. Derogation of Voting Rights by Fraud in Haiti
Haiti is an example where incidents of fraud occurred and led to explosions of
violence and turmoil. Protestors were involved in a torrent of violence protesting delays
in the vote count and alleging fraud in its February 2006 elections. Rene Preval, who had
an overwhelming lead in the elections, saw his advantage shrink after the announcement
of partial voting results, which were alleged to have been fraudulently manipulated with
in order to prevent a first round victory for Preval.51 Irregular practices included the
discovery of voting bags, marked ballots, and other elections materials in a garbage dump
near the capital and 125,000 ballots were declared invalid because of irregularities.52 An
agreement reached to declare Preval the winner of the elections resolved the problem;
however, the protests could have easily taken a turn for the worse, and showcases the
potential that derogating the right to vote by fraud could lead to violence.
d. Derogation of Voting Rights by Fraud in Uganda
Although 2006 elections in Uganda lacked the violence and level of irregularities
of the 2001 elections problems persisted with voting procedures. EU observers noted
unsealed or improperly sealed ballot boxes and a lack of safeguards against multiple
voting.53 A significant number of voters were not allowed to vote even though they
possessed voter cards because their names could not be found on voter registers at polling
stations.54 After the election the runner-up contested the results before the Supreme
Court, which found that numerous voters were disenfranchised by the removal of their
names from voter registers, counting procedures were not followed, and that bribery,
intimidation and violence occurred in some parts of the country.55 However, the
Supreme Court also concluded these acts did alter the election results.56
e. Derogation of Voting Rights by Fraud in Pakistan
In Pakistan, irregularities tainted local elections in late 2005. These irregularities
51
Manuel Roig-Franzia, Haitians Angry Over Election Take to Streets, WASHINGTON POST, Feb. 14, 2006,
available at www.washingtonpost.com/wp-dyn/content/article/2006/02/13/AR2006021300706.html.
52
Steven Jacobs, Preval to be Declared Haitian President, LA Times, Feb. 15, 2006.
53
EUROPEAN UNION, ELECTION OBSERVATION MISSION UGANDA 2006 FINAl REPORT 32 (2006).
54
Id.
55
Id at 39-40.
56
Id.
10
included ballot stuffing, vote buying, and multiple voting and selective use of indelible
ink.57 Observers noted that balloting was not always conducted in secret and in some
instances a 5 year old voting list was used resulting in disenfranchisement.58 Intimidation
was a factor even before the election campaign as prominent political leaders speaking
against the ruling government found themselves imprisoned.59 During the campaign,
police regularly disrupted opposition activists. In Hyderabad, 400 activists were arrested
from one political party for their role in a procession.60 The future appears even bleaker
as public statements by government authorities suggest 2007 parliamentary elections may
be delayed for no legitimate reason.61
IV.
Electronic Voting
With the advent of new technology, electronic voting promises to provide more
access and less discrimination in the electoral process by providing easier access to those
with physical disabilities or limited language proficiency. However without further
development and regulation, the potential for tampering, the inadequacy of security
standards, the lack of a paper record, and human error poses challenges to the principle of
free, fair and transparent elections in electronic voting. Unless these issues are resolved,
the ICCPR’s Article 25 guarantee that every citizen has the right to part in “genuine”
elections will not be realized. The HRC General Comment states that “[s]tates should
take measures to guarantee the requirement of the secrecy of the vote during elections.”62
In addition, the General Comment obligates states to have “independent scrutiny of the
voting and counting process and access to judicial review or other equivalent process so
that electors have confidence in the security of the ballot and the counting of the votes.”63
Studies prior to the 2006 elections in the United States raised doubts concerning
electronic voting. The General Accounting Office (“GAO”) published a report in
September 2005 on the reliability and security of electronic voting. The GAO report
recognized that there were e-voting suffers from “instances of weak security controls,
system design flaws, inadequate system version control, inadequate security testing,
INTERNATIONAL CRISIS GROUP, PAKISTAN’S LOCAL POLLS: SHORING UP MILITARY RULE 9 (2005).
Id.
59
Press Release, Human Rights Watch, Pakistan: Bush Should Urge End to Military Rule (Feb. 25, 2006).
60
INTERNATIONAL CRISIS GROUP, supra note 57, at 8.
61
Press Release, Human Rights Watch, Pakistan: Bush Should Urge End to Military Rule (Feb. 25, 2006).
62
General Comment, supra note 6, para. 20.
63
Id.
57
58
11
incorrect system configuration, poor security management, and vague or incomplete
voting system standards.”64 Other studies corroborate the GAO report. A university
study demonstrated that a commonly used direct recording electronic (“DRE”) voting
machine was susceptible to vote stealing and denial of service attacks and that similar
machines likely contained similar flaws.65 The study discovered software and hardware
problems with the DRE, including loading and the automatic running of code on memory
cards without authentication and a chip on the motherboard easily replaced with
malicious software.66 This was only a sampling of the problems discovered. The study
also proved the ease of conducting attacks virally through passive means not easily
detected. Furthermore attackers could easily erase evidence of any wrongdoing.67
Additionally, it was reported that discrepancies in vote tallies and malfunctions
with electronic voting machines occurred in primary elections in the United States.68 In
the state of Maryland the Governor even recommended that voter avoid machines by
using absentee ballots in the general election.69 Despite warnings, many states did not
make necessary changes with voting machines or software because of lack of time. As
predicted, problems arose in the general elections that related to the machines and
software and human error.
Many polling stations encountered problems with machine malfunction, lost votes
and flipped votes. Reports of machines not starting were common sometimes due to
internal clock and access card problems or sometimes unknown problems.70 Use of
direct recording electronic (DRE) machines resulted in 181 reports of flipped votes,
situations where the voter’s choice is not reflected according to national voter advocacy
group.71 In many instances the opposing candidate’s name was reported reflected on the
screen of the machine.
64
GENERAL ACCOUNTABILITY OFFICE, GAO-05-956, ELECTIONS: FEDERAL EFFORTS TO IMPROVE
SECURITY AND RELIABILITY OF ELECTRONIC VOTING SYSTEMS ARE UNDER WAY, BUT KEY ACTIVITIES
NEED TO BE COMPLETED, (2005).
65
Ariel J Feldman et al., Princeton University, Security Analysis of the Diebold AccuVote-TS Voting
Machine (2006).
66
Id at 17.
67
Id at 21.
68
ELECTIONLINE.ORG, THE 2006 ELECTION 5 (2006).
69
Id.
70
VOTERSUNITE.ORG, VOTE TRUSTUSA, & VOTER ACTION, E-VOTING FAILURES IN THE 2006 MID-TERM
ELECTIONS 4 (2007).
71
Id at 5-6.
12
The new technology proved difficult to operate as many election officials across the
country did not prepare poll workers. Poll workers in Pittsburgh and Cleveland faced
difficultly starting voting machines.72
In Denver poll workers could not quickly
troubleshoot touch screen voting machines.73 Media reports described some Denver
election officials as baffled.74 It was estimated that over 20,000 did not vote in Denver
due to resulting long lines.75 These problems forced the resignation of Denver’s senior
election official.76
Although voter verified paper audit trails are often heralded as a safeguard for
accountability of electronic voting machines they too have problems. Problems included
the text on the paper trail not matching choices given by the machine, the printer running
out of paper, the printer just not operating, or the printout not matching the voter’s
choice.77
Nowhere did electronic voting problems seem more acute than Florida’s 13th
Congressional District.
The margin of victory in this election was 369 votes and
machines in one county did not record votes for 18,000 voters.78 According to reports
one poll worker said the touch-screen machines did not register votes for Congress. The
county election chief was reported to have identified a problem with the display of the
congressional race on screens that resulted in voters overlooking the race completely in
an email sent to poll workers three days before the election.79 It is unclear if any further
action was taken.
In the wake of the troubled 2006 elections government leaders have pledged to
correct problems. The chair of the Committee on House Administration stated recently
that her number one priority was the integrity of electronic voting machines.80 Senators
72
ELECTIONLINE.ORG, supra note 68, at 7.
VOTERSUNITE.ORG, VOTE TRUSTUSA, & VOTER ACTION, supra note 70, at 11.
74
Id.
75
Id. at 15.
76
George Merritt, Denver’s Election Head Resigns, THE DENVER POST, Dec. 6, 2006, available at
http://www.denverpost.com/search/ci_4790488.
77
Id. at 7.
78
Jim Stratton, Ballots Favored Dems, THE ORLANDO SENTINEL, Nov. 22, 2006, at A1, available at
http://www.verifiedvotingfoundation.org/article.php?id=6423
79
ELECTIONLINE.ORG, supra note 68, at 9.
80
Press Release, Committee on House Administration, Electronic Voting Machines: The View from the
Chair (Jan. 16, 2007).
73
13
too have called for legislation.81 However, officials should be careful not to repeat
mistakes of the earlier Help America Vote Act where although laws mandated voter
accessibility standards many other concerns were left unaddressed. New legislation
should not only focus on technology, but also on prevention through preparation, which
was a crucial factor in the success or failure of United States elections in 2006.82
V.
Media Bias
The role of the media is immensely crucial for voters during the election process.
In particular, the news media, whether it utilizes print, digital, or broadcast methods, is
the principal source of information regarding election coverage. Without the media,
voters would lack a significant tool to learn information about the electoral process such
as candidate backgrounds, their platforms and the entire election process. The media
exercises an indispensable role of neutral commentator, which if lacking can make an
election ineffective. Paragraph 25 of the HRC General Comment 25 calls for the voter’s
right to information and the objective role of the media, by stating that
[i]n order to ensure the full enjoyment of rights protected by article 25, the
free communication of information and ideas about public and political
issues between citizens, candidates and elected representatives is essential.
This implies a free press and other media able to comment on public
issues without censorship or restraint and to inform public opinion.83
This right to information, along with the right to vote strongly suggests that
individuals have the right to “receive complete and unbiased information about
the contending parties.”84
Unfortunately, digressions on the right to vote through the media occurred and
still occur in many elections around the world. In Georgia the Uniform Election Code
allowed for an equal amount of free television advertisement time for candidates.
However, outside of this free time, the overwhelming majority of coverage went to the
81
Christopher Drew & Ian Urbina, Big Shift Seen in Voting Methods With Turn Back to a Paper Trail, The
NEW YORK TIMES, Dec. 8, 2006, at A1.
82
ELECTIONLINE.ORG, supra note 68, at 4.
83
General Comment, supra note 5, para. 25.
84
UNESCO in collaboration with INDEX on Censorship, International News Safety Institute (INSI),
Article 19 and Reuters Foundation, A Reporter’s Guide to Election Coverage, pg: 76 (2005), available at
http://www.indexonline.org/en/pdfs/unesco-english.pdf.
14
incumbent
president
and
the
government.85
This
coverage
was
regularly
indistinguishable from campaign advertisement because the same campaign slogans as in
the paid advertisements were used in news coverage.86 In Belarus the control of the
media was more explicit. Although the election code allows for free airtime on state TV,
opposition messages faced censorship.87
The OSCE reported three instances where
television and radio cut opposition messages or censored them outright. 88 Additionally,
police confiscated non-state newspapers on multiple occasions during the campaign.89
Voters depend principally on the media represents to collect information during elections;
therefore it is vital that the media exercise an objective role in delivering complete and
unbiased information. While the media (especially publicly funded) holds a responsibility
to present a balanced and objective view of the elections, the State, must live up to its
“obligation to create an environment within which the media…are able to freely to go
about their job of informing the public.”90
VI.
Conclusion & Recommendations
Despite positive developments in many countries, there remains a fine line
between simply allowing voting rights in name, as opposed to an effective right to vote
that promotes the principle of free, fair and transparent elections. As such, HRA requests
States to consider the following recommendations.
HRA calls on the Human Rights Council to appoint a Special Rapporteur dealing
with the right to vote, who can authorize a study on meaningful parameters of electionrelation norms, commitments, principles, and good practices and collect and address
complaints regarding abridgment of the right.
HRA calls on all nations to strictly comply with all relevant international
instruments supporting the right to vote, in particular the provisions of the UDHR,
ICCPR, CERD and CEDAW that protect basic human rights involving the electoral
process.
85
ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE, GEORGIA: MUNICIPAL ELECTIONS 5
OCTOBER 2006, at 15 (2006).
86
Id.
87
ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE, supra note 44, at 9-10.
88
Id. at 10.
89
Id. at 9.
90
UNESCO, International Standards for the Media, at 24, available at
http://webworld.unesco.org/download/fed/iraq/english/international_standards_en.pdf.
15