This article is derived from Mr. Young’s May 1, 2014, Law Day Speech to the Albuquerque Bar Association. A fuller version of the article containing all citations to legal authority is available to download.
As someone who has focused his career on administrative law and regulatory practice, I have also acted as counsel to political campaigns involved with recounts, contests, and electoral processes (which is different from campaign finance, the bread and butter of many political practice lawyers). I have represented candidates running for the offices of everything from sheriff to president (including presidential candidate Al Gore) and one of the major national parties. In 2009, I began doing more work abroad, advising election management bodies on the electoral dispute resolution process. The modalities ultimately chosen to resolve disputes—whether independent administrative agencies, quasi-judicial institutions, or courts—all require a fidelity to the rule of law. Some of the underlying principles are covered in this article.
The Evolution of Voting Rights and Electoral Reform
Democracy and the guarantee of voting rights is an evolutionary process. The U.S. Constitution, for example, does not expressly provide for the right to vote or for how it is to be exercised. Article I, Section 2, does provide that the rules for voting for the U.S. 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. It was not until 1920 that the Nineteenth Amendment granted women the right to vote. One person–one vote was not recognized until Baker v. Carr (1962) and Reynolds v. Sims (1964), which addressed vital redistricting issues. Minority rights were not effectively addressed until the Voting Rights Act of 1965. Most recently, in 2013, the Voting Rights Act’s preclearance provisions, or at least the formula for determining who was required to seek preclearance of voting changes, was struck down in Shelby County v. Holder.
In the last century, and at the start of this century, electoral reform in the United States 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, however, in Citizens United v. Federal Election Commission, the Supreme Court held that corporations could use corporate funds to support political activities. In 1971, Congress enacted the Federal Election Campaign Act and amended it from time to time to address limitations on campaign contributions and expenditures, in part as a reaction to the Watergate scandals. These limitations were considered by the Supreme Court this spring in McCutcheon v. Federal Election Commission, which held that aggregate campaign contribution limits were unconstitutional. And let’s not forget the 2000 presidential recount in Florida and the resulting decision by the Supreme Court in Bush v. Gore, which gave rise to an explosion in post-election litigation, articles, and textbooks 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. 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 of which 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 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 that 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 H.L.A. Hart and Lon Fuller recognize as the foundations for the rule of law. See Lon L. Fuller, The Morality of Law (rev. ed. 1969) (requirements for legal order); H.L.A. Hart, The Concept of Law (1961) (“rules of recognition”).
The Universal Declaration of Human Rights (UDHR) provides that the right to genuine elections gives rise to four fundamental rights relating to the resolution of electoral complaints. These are rights to: (i) transparent and open procedures, (ii) a timely decision, (iii) an impartial arbiter, and (iv) remedies that are measured and enforceable. These general requirements are important because electoral complaints occur against short timelines and, in many situations, a poorly run election results in chaos and violence and threatens the stability of government and the state.
My experience in advising election management bodies worldwide 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 a matter of 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.” The ICCPR builds on the rights set forth in the Universal Declaration of Human Rights.
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 . . . .
The UN Committee on Human Rights General Comment 25.4 to Article 25 further provides: “Any conditions which apply to the exercise of the rights protected by article 25 should be based on objective and reasonable criteria.” Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination operates to similar effect and provides for “the 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 UDHR, which provides that “[e]veryone has the right to an effective remedy.” An effective remedy is of paramount importance to the electoral dispute resolution process. The right to a remedy for violations 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. See UDHR art. 10; ICCPR art. 14. 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 or 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” standards, 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. They come from individual citizens, nonpartisan organizations, political parties, and candidates. Complaints rarely arise out of the actions of international monitors and observing organizations. 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 the reporting of all incidents—no matter how small or large—so they can be timely addressed. But the very fact that questions are raised is seen by some domestic and international observers as indicative of “bad” elections and by losing candidates as a source for claiming the winner has not been legitimately elected.
I suggest that, particularly on election day, we not fixate over the number of incidents reported, but instead that we focus on the incidents substantiated and the impact of those not addressed. In many cases, including that of the recent U.S. presidential election, there are a large number of incidents, but few, if any, affect the outcome. That is not to say by any means that the U.S. election was perfect, as we saw long lines at the polls, which discourages voting. However, there are other concerns. When a voter encounters a problem at the polls, if it is not resolved, an important part of the election process is put into question: trust—trust that all votes will be counted and the election will be fair. Recurring problems creating a loss of trust and confidence can decrease participation by leading voters to feel as if their votes don’t matter.
Presenting and trying election-law-related cases have become an issue. Recently, Judge Richard Posner commented on the difficulty in determining the record upon which to make a decision. See Richard A. Posner, Reflections On Judging 84–85 (2013). Despite the controversy over whether Judge Posner was disavowing an earlier decision on voter identification laws or was misunderstood in his self-evident acknowledgement that complex election cases need empirical support. See Ed Whelan, More on Judge Posner’s (Now Disavowed?) Mea Culpa on Voter ID Laws, Nat’l Rev. Online (Oct. 28, 2013), http://www.nationalreview.com/bench-memos/362352/more-judge-posners-now-disavowed-mea-culpa-voter-id-laws-ed-whelan, 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 with 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 Florida’s Second Circuit Judge Terry Lewis after hearing all challenges.
If lawyers are not prepared to present empirical and social scientific data on important political issues, the indicia of a fair hearing are missing and review is virtually impossible. A process not based on a full understanding of the facts and the political environment fails to meet basic rule-of-law conditions.
The 2014 Presidential Elections in Afghanistan
Recent elections around the world show that democratic principles are gaining acceptance. In Nigeria, the Philippines, Armenia, Georgia, and other countries, elected civil governments are following previously elected governments. The succession of one civil government by another popularly elected may, in certain countries, portend the end of the cycle of military coups interrupting progress toward elected democracies.
Under the 2001 Bonn Agreement (officially, the “Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions”), the Islamic Republic of Afghanistan began the process of developing a democratically elected government. The country had not had an operating national government since 1979, and the Bonn Agreement provided for an interim government led by Hamid Karzai, later elected in 2005 and 2009. Under the Afghanistan Constitution, Karzai was limited to two terms. His current term ended May 22, 2014.
In July 2013, in preparation for the 2014 presidential election, the Afghan National Assembly adopted an Electoral Law. Before 2014, the electoral laws had been issued as presidential decrees. The National Assembly also established a Structural Law, which provided the operational basis for the Independent Electoral Commission (IEC), created in Article 156 of the Constitution, and for a permanent Independent Electoral Complaints Commission (IECC). The year 2014 marked the first time the entire election process was entirely Afghan run and managed. Prior elections had involved international participants in the process.
The elections were held April 5 for president and for provincial council, with eight presidential candidates and over 2,000 provincial councils certified to run for office. The total voting population is difficult to determine due to conflict conditions and population movements, but, of an estimated 13 million voters, more than seven million went to the polls. Thirty-six percent were women. Commentators and the media viewed the election as generally successful.
The 2014 Afghan elections were a significant improvement over prior elections. Turnout was 50 percent higher than in the last presidential election. Voting processes generally worked. Detected incidents of fraud and malpractice were fewer. In 2009, 1.2 million fraudulent votes were found. In 2014, the number was determined to be 375,000, and electoral disputes by election officials were timely resolved. Ballot stuffing appears still to be a problem. Problems also remain as to the transparency of the counting and complaints resolution process. The IECC mitigated many transparency issues by holding five days of open public hearings for the presidential candidates. These hearings were precedent-setting for Afghanistan. After the first round, two presidential candidates remained for a second run-off round held June 14, since no candidate reached the required 50-percent-plus-one. Afghan law mandates a first-past-the-post majority winner based on voters casting single, nontransferable votes, as is common to U.S. elections Provincial candidate certification was delayed due to the workload involved in resolving presidential complaints, the sheer number of provincial complaints, and the need for recounts in the provincial council races.
As of this writing, run-off results for president were being tallied and reviewed, with the apparently losing candidate threatening to boycott the counting process. The new president will take office in early August. At the conclusion of election day for the second round, the UN Secretary-General’s Special Representative (SGSR) for Afghanistan, Ján Kubiš, said: “With the same determination, resilience, and courage the world saw in the first round of elections, the people of Afghanistan today once again decided to take their destiny in their own hands and demonstrate their desire for a peaceful, prosperous, and united Afghanistan.” Mr. Kubiš praised the competence and dedication of the Afghan National Security Forces in enabling voting to take place without any major disruption, even at the cost, sometimes, of their own lives. On the post-election tallying and resolving electoral disputes, the SGSR declared that “The IEC and IECC now have a critical responsibility to tally the votes in a transparent and accountable manner, resolve complaints consistently and efficiently, and to transparently release the results.” Despite Mr. Kubiš’s laudatory assessment, electoral violence remains a critical problem: on election day for the run-off, there were at least 46 deaths, two IEC staff killed, and six injured, with over 150 incidents of other violence. During the campaign period, one of the candidate’s convoys was attacked, and 16 were killed.
The ultimate test for any democratic process is its sustainability. Afghanistan has made progress despite continued conflict waged by the Taliban and continued electoral violence. Recent elections are moving in the right direction. Hopefully, the progress made will continue. Efforts are already underway for National Assembly races to be conducted in spring 2015.
Progress is being made here and abroad. There will be setbacks. In meeting the needs for reform in the protection of voting rights and the resolution of disputes, analytic tools must be developed. Greater use of social- and political-science tools for measuring fraud and administrative malpractice is needed. The International Foundation for Electoral Systems has developed a first-of-its-kind methodology for measuring fraud, malpractice, and systemic manipulation. Similarly, we must continue to seek better ways to create and use remedies for electoral abuses and violations and to measure their effectiveness. Much has been accomplished to nurture the democratic electoral process, but much remains to be done to ensure that democratic progress, as currently seen in Afghanistan, is sustained. Throughout the world, accomplishing the goal of free, fair, credible, and independent elections is a real possibility. In the end, “every vote matters.”