This article was originally published on GW International Law and Policy Brief’s website.
Election observers help ensure that elections are conducted in a democratic manner, as recognized by international law. Paragraph 8 of the 1990 Organization for Security and Cooperation in Europe (OSCE) Copenhagen Document provides that “the participating States consider that the presence of observers, both foreign and domestic, can enhance the electoral process for States in which elections are taking place.” And Paragraph 12 of the 2005 Declaration of Principles for International Election Observation provides that not only should an international election observation mission have access to all stages of the election process and all election technologies, but so should anyone concerned with election processes, including “all organizations and persons that are interested in achieving genuine democratic elections in the country.”
Unfortunately, in practice many countries—including the United States—do not provide access to international and citizen observers at all stages of the electoral process. During the 2020 presidential election, eight states explicitly prohibited non-partisan citizen observers from observing polling stations and eighteen states restricted observation by international observers. And due to concerns over COVID-19, social distancing measures were imposed that further limited the number of observers allowed in many polling places at any given time.
More broadly, there was confusion throughout the U.S. in 2020 about how the election observation process worked. While other factors, such as mis- and dis-information, undoubtedly contributed to this confusion, expanded opportunities to observe the election process—a key form of transparency—would arguably reduce distrust of U.S. elections and the resulting false claims and attempts at disruption.
The biggest problem of the U.S.’s 2020 presidential election turned out to be the false belief (abetted by former President Donald Trump and his allies) that it was marked by widespread voter fraud and corruption, which led some to resort to violence to overturn the result. Such claims led to one of the most harrowing events in the 244-year history of U.S. elections: A January 6 insurrection at the U.S. Capitol that resulted in five deaths and numerous injuries. While the distrust of the electoral process that spurred this riot will likely take years to overcome, the United States must take immediate steps to address its cause lest it reappear and mar in future elections.
Balancing Observation Against Possible Interference
Providing opportunities for people to observe vote counting without interfering in the counting process is not as easy as it seems. The COVID-19 pandemic has introduced unprecedented health risks when conducting (or observing) elections in-person. The threat of election interference appears to have made some countries, like the United States, more reluctant to allow personal observation of their voting processes. And in some places, considerations such as the re-interpretation of longstanding laws appear to have led to greater restrictions on election observation. But the situation is not hopeless or irreversible. Here are three ways to help safeguard the conduct of elections while ensuring that those who want to observe an election can do so.
1. Use larger facilities for voting and canvassing.
To conduct elections in new, physically distanced ways during the coronavirus pandemic, some countries are resorting to larger facilities. In the United States, many jurisdictions conducted the verification, counting and canvassing of ballots and other election materials at such locations. And in both the United States and New Zealand, those bigger locations, such as professional arenas and sports stadiums, were also used as voting locations, filling the void when some traditional polling places, such as senior centers and schools, became unavailable. These facilities are both large enough to allow for socially distanced voting and also blessed with critical elements of election infrastructure, such as: reliable broadband connections, ample parking, security features, ADA accessibility, and proximity to public transportation.
The large footprints of stadiums and arenas make the physical observation of voting much easier. It is critical that those involved be physically distanced from one another during a pandemic, but even in “normal times” it is a good idea to separate voters, poll workers, and observers to be widely spaced. Distancing makes it easier, for example, for observers to avoid interfering with each other, or having their views obscured by other observers, when watching election activity, and it reduces the likelihood that voters, election workers, and observers will interrupt one another during voting.
2. Allow more opportunities to vote (and observe).
Offering more opportunities—for individual voters, as well as voters as a whole—to vote not only makes it easier for voters to cast their ballots, but can make life easier for observers. Providing additional opportunities to vote through expanded early in-person voting or mail-in ballots alleviates the congestion that is virtually inevitable on a single Election Day, and makes it more likely that an observer will get a clear view of the voting process at any given location. It also gives observers multiple opportunities to view certain aspects of an election process, which is helpful for at least two reasons. First, if unforeseen factors like illness or bad weather prevent an observer from seeing voting on a particular day, the observer may be able to observe on a different day. Second, if observers have multiple opportunities to view a process, they will have a better understanding of how it works and be able to report on it more accurately.
3. Allow observers to view elections remotely.
Allowing observers to view election processes via secure streaming video not only gives more people the opportunity to view elections but removes the inherent limitations of in-person election observation, particularly during a pandemic. For example, when South Korea held elections for all 300 members of its National Assembly last April, the National Election Commission livestreamed polling station activities and broadcast the process nationally during early voting and on election day. The livestreaming provided remote access to key stages of the electoral process including the preparation and start of voting, actual voting in progress, the close of voting, the transfer and storage of voted ballots, preparation for the start of counting, the counting process as it progressed, and the close of vote counting.
And it’s not just South Korea. In the United States, a number of jurisdictions livestream stages of the electoral process to showcase ballot processing and avoid/defuse criticism. Los Angeles County—the nation’s single largest voting jurisdiction–live-streamed operations for millions of vote-by-mail ballots. Maricopa County, Arizona’s largest jurisdiction, had 13 video feeds covering signature verification, early ballot counting and ballot tabulation. If you are wondering whether this is feasible only for large jurisdictions, Arizona state law requires every county, big and small, to implement live video recording of tabulation centers while ballots are being counted. As a result, watching the Arizona elections process from anywhere is not just feasible, it’s easy.
There is no silver bullet to promoting voter confidence in democratic elections but transparency is key. Giving more people a reasonable opportunity to view the process with their own eyes—whether it’s international or domestic observers—would be a first good step.