American Democracy and the Rule of Law

Introduction

Thank you for the opportunity to be with you today as we celebrate Law Day 2014 on the subject of "Why Every Vote Matters."

The Constitution does not expressly provide for the right to vote, or how it is to be exercised. Article I, Section 2 does provide that the rules for voting for the House of Representatives are to be determined by the state legislatures. Direct election of senators was not required until passage of the Seventh amendment in 1913 and it was not until 1920 that the Nineteenth Amendment granted women the right to vote. One person - one vote was not recognized until 1962, and minority rights were not effectively addressed until the Voting Rights Act of 1965.  Most recently the Voting Rights Act's preclearance provisions, at least the section on determining who was required to seek preclearance of voting changes, was struck down in  Shelby County v. Holder.

In the last century, and the start of this century, electoral reform has been one of reacting to real and perceived abuses. In 1907 Congress enacted section 610 of the criminal code (later codified in Title 18) to outlaw campaign contributions by national banks and corporations.  Section 610 was motivated by the dual concerns of undue influence over elections exercised by corporate donations and the belief that stockholder funds should not be used for political purposes.  In 2010, the Supreme Court, however, held that corporations could use corporate funds to support political activities.  In 1971, Congress enacted the Federal Election Campaign Act, and amended it in 1974, to address limitations on campaign contributions and expenditures, in part as a reaction to the Watergate scandals.  These limitations are again currently before the Supreme Court.And lest we forget, the 2000  Presidential Recount in Florida,   which gave rise to an explosion in post-election litigation, articles and text books, and the ongoing debate about the best way to approach redistricting.

The Rule of Law as the Foundation for Elections

 At the heart of the democratic process is the Rule of Law. It goes without saying that the Rule of Law is a condition precedent for the existence of democratic institutions. Elections that produce governments that operate outside the rule of law--examples we see daily on the news, do not represent democratic progress.  Like other processes under the Rule of Law, elections --- before, during and after Election Day ---- must be governed by predictable rules, derived from established principles for determining election outcomes and be decided by independent arbiters regardless of the identity of the party.  These rules should be established prior to, and thus outside of, the factors at play in a particular election, as we learned in the Court's decision in Bush v. Gore.  Applying predictable rule-based decision-making, which is subject to review, ensures that the election resolution process is reliable, trustworthy and faithful to the actual voting record.  These concepts are based on what Professors Hart  and Fuller recognize as the foundations for the rule of law.

 The right to genuine elections gives rise to four fundamental rights relating to the resolution of electoral complaints.  These rights are: (i) to transparent and open procedures (ii) to the timely decision; (iii) to an impartial arbiter; and, (iv) to remedies that are measured and enforceable.  These general requirements are important because electoral complaints occur in against short timelines.  In many situations, a poorly-run election results in chaos, violence, and threatens the stability of government and the state.  

My experience in advising election management bodies world-wide is that democracy and the rule of law matter to citizens struggling to build a better life, whether in post-conflict countries or those emerging as self-sustaining democratic societies. Democracy around the world is important to those directly involved, and is in America's critical interest in ensuring peace and human rights.

For those countries seeking to develop democratic societies, one of the basic international; commitments is the International Covenant on Civil and Political Rights (ICCPR), which secures the right "to vote in genuine elections."  Article 25 of the ICCPR, to which most countries are signatories, provides:

Every citizen shall have the right and opportunity, without any of the distinctions mentioned in Article 2 [relating to discrimination] and without unreasonable restrictions: (a) to take part in the conduct of public affairs, directly or through freely chosen representatives; (b) to 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 the electors.<\/blockquote>

The UN Committee on Human Rights General Comment, to Article 25, further provides that: "Any conditions which apply to the exercise of the rights protected by Article 25 should be based on objective and reasonable criteria."  The International Convention on the Elimination of All Forms of Racial Discrimination, is to similar effect, and provides for "[T]he right to participate in elections - to vote and stand for election - on the basis of universal and equal suffrage.  These rights are particularly important for the empowerment of women and restorative electoral justice for the disenfranchised.

These rights are enforceable through Article 8 of the Universal Declaration of Human Rights that provides: "Everyone has the right to an effective remedy\u2026" An effective remedy is of paramount importance to the electoral dispute resolution process.

The right to a remedy for violation of human rights is itself a human right, while sanctions against those who infringe the provisions of the electoral law are implicitly required in any effective system of implementation.

The integrity of the system requires not only that such issues be dealt with by an independent and impartial authority, such as the electoral commission or the courts, but also that decisions be reached in a timely manner, in order that the outcome of elections not be delayed. As with other aspects of the electoral process, the availability of such procedures must be open and known to the electorate and the parties.

Concurrent with the right to an effective remedy, is the right to a fair and public hearing. The right to a public hearing includes the right to an impartial tribunal, equal access, expeditious consideration and equality of arms.  The hearing may be held before a competent administrative agency, a court, or in certain circumstances relating to the seating of representatives, by a legislative committee.  Under international standards, there must be an ability to appeal a decision of the first instance body of the factual findings usually under "clearly erroneous" or "clear error" standard and legal issues through de novo review.

Fair and Open Processes for Resolving Disputes

Complaints about the electoral process and the outcome of an election exist in all electoral systems. The source of these complaints may range from individual citizens, non-partisan organizations, political parties and candidates to international monitoring and observing organizations. Their resolution should promote corrective action consistent with the goals of a free, fair and credible election. In cases of fraud or intentional administrative malfeasance, the complaint process should result in punitive remedies.

There is tension between the desire to have all complaints raised as they occur and the need to ensure the perception of fair elections. We want to encourage all incidents -- no matter how small or large -- to be raised, so we can be timely addressed. But the very fact that incidents are raised is seen by some domestic and international observer as indicative of "bad" elections and by losing candidates as a source for claiming the winner has not been legitimately elected.

I suggest, that we not fixate over the number of incidents reported, particularly on Election Day, but focus on the number of incidents substantiated and the impact of those that were not addressed. Incidents that are not addressed must be part of our concern - but our analysis must be evidence-based. In many cases, including in the recent U.S. Presidential Elections, a large number of incidents arose, but few, if any, affecting the outcome of the election remained. That is not to say, that the U.S. election was perfect by any means as we saw long lines at the polls which discourages voting - an issue the Presidential Commission recently addressed.  Additionally, while most of the incidents did not directly affect the outcome of the election, that is not the only concern. When a voter encounters a problem at the polls, if it isn't resolved, as it often isn't, it destroys an important part of the election process - trust. Trust that all votes will be counted and trust that the election will be fair. Recurring problems that lead to this loss of trust and confidence in the system can lead to voters feeling as if their vote doesn't matter which will often decrease participation.

Presenting and trying election law-related cases has become an issue. Recently, Judge Posner commented on the difficulty in determining the record upon which to make a decision.

Despite the controversy over whether Judge Posner was disavowing an earlier decision on voter ID laws or was misunderstood in his self-evident acknowledgement that complex election cases need empirical support, the point is that judicial decisions affect the political "rules of the game." There is a major need for lawyers trying electoral cases to develop a full summed record that includes empirical data. The Supreme Court's decision in Bush v. Gore might have come out differently if it had been fully understood by the majority that ultimately a universal standard would be provided by Judge Terry Lewis after hearing all challenges.

If lawyers are not prepared to present the empirical and social scientific data on important political issues then, the indicia of a fair hearing are missing and review is virtually impossible. A process that is not based on a full understanding of the facts and the political environment fails to meet basic Rule of Law conditions.

The Importance of ADR In Election Disputes

The goal of Alternative Dispute Resolution is to develop means for interested parties to reach agreement. ADR can range from informal, as in meetings with a convener or mediator, to formal processes such as arbitration in which binding decision are made. The type of ADR used in election resolution will depend on the interests to be protected. As Professor Green has demonstrated, mediation is even appropriate to resolve post-election procedural disputes.

The field of ADR as it applies to election disputes is fairly new. Nonetheless, it can provide a means to resolve many disputes quickly and efficiently, particularly in countries without a strong or independent judiciary. The development of electoral systems that produce free, fair and credible elections requires managements systems that can transform conflict and violence into the peaceful development of political systems.

Country application of the ADR processes to resolve disputes are as varied as the legal and political systems within those states. Despite this variety of approaches, several common features appear. First, most Electoral ADR (or "EADR") systems invoke the loosely defined concept of the Rule of Law, which, as noted above, attempts to provide "predictable rules, derived from established principles for determining election outcomes." Second, the EADR process used must produce timely resolution. Third, the EADR process must provide an impartial arbiter. Finally, the outcome of the EADR must create remedies that are enforceable. The only departure is that most mediation to be successful ---even in the political context--- is confidential with only the agreement be made public.

Not all EADR methods, however, may be appropriate for all disputes. Many fundamental rights established in international and national law involve rights which must be guaranteed by judicial intervention, including the right to political association, the right to peaceful assembly, to move freely to campaign, the right to be free from coercion or threats of violence during the political process, the right to the freedom of expression and, of course, the universal right to vote and to be elected at genuine periodic elections.

The United Nations Human Rights Commission (UNHRC) asserts that non-discrimination and equality principles require that everyone has a right to equal access to the courts. The UNHRC interprets this right to mean that everyone is entitled to access to a competent, impartial and independent tribunal at some point in the process. This statement does not, however, mean that the EADR methods do not foster the just and efficient resolution of disputes. While many EADR processes, or even the decisions of Election Management Bodies (EMBs), may not meet the criteria of UNHRC General Comment 32, or the requirements of a "competent, independent and impartial tribunal" under Article 14 of the ICCPR, most ADR processes are intended to avoid conflict through means agreed to by the parties.

Even where fundamental rights are involved, ADR processes may be helpful in avoiding actual conflict, as long as disappointed parties who do not reach agreement have a right to seek judicial resolution to address fundamental rights. While the development of rights to universal suffrage, and to participate in the electoral process are guaranteed by international conventions, the enforcement of these rights is the responsibility of individual states, who can, where appropriate and consistent with national and international norms, implement alternative avenues to judicial resolution.

South Africa, for example, uses ADR in labor disputes, access to justice, service delivery and in the conduct of its elections. The South African electoral processes include communitybased conflict management structures and political party liaison committees. In 1999, South Africa's Independent Electoral Commission established a conflict management program to address access for voters, candidates and political party intimidation and the destruction of campaign materials. The program has been successful in resolving electoral disputes and reducing electoral-related violence, by using experts in ADR who are trained to address electoral issues prior to, and during the election. The program's success is summarized as follows:

The programmed has proved effective and the number of challenges coming before the courts, and electoral disputes in general, has diminished. There were, for example, 1113 disputes in the 1999 elections, including disputes over access for voters, candidate or political parties being impeded by intimidation and violence, or the destruction of campaign publicity. The number of such disputes fell to 314 in the 2000 elections and 253 in 2004.

In Nigeria, the Independent National Electoral Commission (INEC) is both regulator and umpire. Under Article 156 of the 1999 Constitution, INEC is an independent federal commission with the responsibility of conducting federal and state general elections. (State- independent commissions organize and conduct local governmental elections in each of the 36 states). While elections are regulated on paper, most electoral irregularities are viewed with impunity. This lack of adherence to the rules presents INEC with significant challenges if it is to ensure free, fair and credible elections.

INEC is responding by promoting pre-election preventative mediation which I have worked to create with INEC. INEC efforts are in direct response to the African Union that: "It is imperative that elections are transformed into conflict management tools rather than triggers for violent conflict, war, and political instability." One of INEC's conflict management tools is the recognition that traditional form of ADR are adaptable and appropriate to the resolution of electoral disputes.

INEC recognizes that EADR, when properly utilized, can increase political stability, decrease the number of complaints before INEC and the Courts, and most significantly, reduce election-related violence. INEC, through the development of various guides and a series of internal manuals and training exercises has undertaken to systematically provide direction, guidance and training on the processes for resolving election-related disputes. As part of these undertaking, INEC is asking the political parties to include in their constitutions and party documents a commitment to use mediation and other EADR processes to resolve intra-party disputes.

INEC's approach to electoral disputes recognizes that dispute resolution requires the development of culturally-based collaborative processes which identify the parties' interests and resolve conflicts between them. These conflicts can result from differences in values, desires to control limited resources and opportunities, and psychological needs for political power and authority. The resolution of electoral disputes also requires the awareness by stakeholders of the EADR processes and the development of skills by stakeholders in the effective use of EADR methods.

Conclusion

We are making progress here and abroad. There are setbacks. In meeting the needs for reform in the protection of rights and the resolution of disputes, analytic tools must be developed. As lawyers we should look to the social and political sciences for metrics for measuring fraud and administrative malpractice. Similarly, we must continue to find better ways to define the availability and use of remedies for electoral abuses and violations and to measure their effectiveness.

As you can see, there is much to do if we are to see free, fair, credible and independent elections worldwide. In the end, “Every Vote Matters.”