Republican nominee Donald Trump has made headlines by refusing to commit himself firmly to accepting the election’s results. The reason, according to his campaign, is that voter fraud will taint the election results. Trump is encouraging supporters to “help me stop crooked Hillary from rigging this election” by volunteering to be an election observer.
As it happens, the United States has had election observers for most of its history — including, since 2002, international election observers. The Republican Party’s observers are constrained by a consent decree that goes back to alleged voter intimidation in 1981. The federal government sends out election observers to areas that have historically been charged with racial discrimination, although those observers are no longer protected by the Voting Rights Act.
So what exactly is an election observer?
According to the “Declaration of Principles for International Election Observation,” it’s the “impartial and professional” analysis of systematically gathered information on the conduct of an election. U.S.-based NGOs, such as the Carter Center, the National Democratic Institute (NDI) and the International Republican Institute (IRI), helped draft the Declaration and a model Code of Conduct.
Election observers detect and deter fraud, giving voters confidence in the integrity of their democracy. Monitors watch voting and ballot-counting to ensure that election laws are followed and to quickly and publicly identify problems. In the months before Election Day, observers scrutinize such relevant tasks as voter registration.
The goal is an “accurate and impartial” assessment of the election. According to the National Council of State Legislatures, observers should be trained by their organization in election procedures. The NCSL and the Code of Conduct for International Election Observers state that poll monitors should be neutral and not interfere with the voting process.
When did election monitoring become widespread?
Before the United States adopted secret ballots in the 1880s, all voting was open to public scrutiny. International observation abroad began in 1857, when several countries sent observers to monitor the referendum that formed independent Romania. The United Nations observed decolonization elections beginning in the 1950s. The Organization of American States (OAS) began the practice in 1989. The Carter Center pushed the practice forward beginning in the 1980s.
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Since 1990, international election observation has become a “norm.” Eighty to 85 percent of elections in new democracies are observed. Susan Hyde points out that even semi-democratic countries invite election observation, despite the risk of international criticism, in part because refusing observers is taken as an admission of electoral malpractice.
Who are election observers?
Elections are observed by domestic or international groups. Monitors can be partisan — attached to political parties or candidates — or nonpartisan. These groups use similar techniques toward differing goals.
- Domestic observers’ goal is to check any irregularities in the election, in real time. During balloting, poll observers can alert their organizations to problems, which can prompt election officials to respond to complaints and concerns on the spot. During ballot counting, observers can keep their own tallies, acting as a check against results manipulations.
- Partisan observers, like the ones Trump is recruiting, go to the polls to look out for their own party’s concerns.
- International observers are there not to fix irregularities but to identify whether an election meets international standards, and usually issue a report on their findings.
International observers are hired by the organization fielding the mission, usually a mix of experts and those with some political weight. Mixing policy and political expertise increases a mission’s access and credibility.
Domestic observers are usually unpaid volunteers, trained and accredited through their local organization or party.
Who observes elections in the United States?
Elections in the United States are governed by state election laws and typically administered county by county. This has led to a hodgepodge of election law and practice.
While many Americans may not realize it, at least some U.S. elections have included observers since independence — and this year those will include an intriguing mix of partisans and nonpartisans, federal and even international observers.
The Republican and Democratic parties. The vast majority will be partisans. In most U.S. polling stations, Republicans and Democrats will have one or two observers who, typically, sit unobtrusively at a table near the voter check-in location. And while most years they’ve gone unremarked, partisan observers have engaged in voter intimidation.
In 1981, the Republican National Committee (RNC) organized a partisan poll watching group, the National Ballot Security Task Force, in an effort to keep Democrats from “stealing” the extremely close gubernatorial election in New Jersey. The group included armed off-duty police officers who patrolled and in some cases removed voters from polling locations in Latino and African American neighborhoods. The Democratic National Committee accused the RNC of harassment and voter suppression and sued for violations of the 14th and 15th Amendments and the Voting Rights Act.
The parties signed a consent decree in U.S. District Court. Without admitting wrongdoing, the RNC agreed to allow a federal court to review any proposed “ballot security” activities, particularly in minority areas. The DNC has complained a number of times that the RNC failed to respect the decree, in Pennsylvania, Arkansas, Kentucky and Louisiana. In 2008, after the Democratic Party and the Obama administration invoked the consent decree, the Republican Party tried to challenge its continued existence. The Third Circuit upheld the ongoing decree, and in 2013, the Supreme Court declined to hear any further challenge.
It is unclear whether Trump’s poll monitors would fall under the decree. Trump’s campaign has focused on getting observers to minority neighborhoods in Pennsylvania and Ohio. Some of Trump’s monitors may plan to intimidate would-be voters.
Potential voter challengers. Thirty-nine states allow poll watchers to challenge eligibility at the polls; 28 states allow challenges before someone votes. In some states, these laws originated during the American Revolution, but in others “challenger laws” came along with Jim Crow and the effort to stop African Americans from voting. Challengers have become more assertive in the past decade.
Trained federal monitors. From 1965 through 2013, under provisions of the 1965 Voting Rights Act, the Department of Justice sent trained federal monitors to areas with a history of racial discrimination, to protect voters’ access to the polls. That was curtailed by the June 2013 Supreme Court ruling on Shelby County v. Holder, which struck down a number of VRA provisions, including this poll monitoring practice. Since Shelby, the Justice Department can still send out staff, but local officials can turn them away. Trained federal observers can now be sent out only with a federal court order. This year’s DOJ deployment of election observers will be the smallest since 1964. The DOJ sent observers to 23 states in 2012 but will be present in only five states in November.
International election observers. The Organization for Security and Cooperation in Europe (OSCE) has been observing U.S. elections since 2002, as part of member states’ exchange of citizen observers, and will do so again this year. In 2002, the OSCE began observing U.S. elections as a response to the systemic problems in Florida’s 2000 presidential vote. OSCE election observation in the United States has expanded to include other states.
But this year, the OSCE concluded that U.S. elections needed more observers, citing changes to the VRA, campaign finance laws, and new voter registration and identification laws. This year, the OSCE will send 426 observers. Right-wing outlets are again writing that a “horde of international bureaucrats” will descend on the polls with nefarious intent.
For the first time, the OAS is also sending a small election observation mission to the U.S. Although the OSCE has a standing agreement that all member countries accept election observation, the OAS does not. The U.S. invited OAS observers to try to persuade other member states to accept election monitors.
While the U.S. State Department has given these missions permission to observe elections, local election officials must still agree as well. That’s been difficult to get in some areas.
Do election observers reduce irregularities and fraud?
Internationally, election observation can be a strong deterrent against fraud. Susan Hyde and Judith Kelly’s research has found that it helps nudge countries further toward democracy, discouraging both malfeasance and violent protest.
Election observers are good at catching things like ballot stuffing and cheating officials. But that’s not a widespread problem in the modern United States. This year, the more likely problem is voter intimidation, perhaps including by partisan election monitors.
What election observation does well is help election losers accept that elections were free and fair (or not) — thus persuading them to accept the election results, shoring up the system’s and the regime’s credibility and legitimacy. We should welcome nonpartisan observers who can deter fraud and intimidation, increase trust in the system, and promote peaceful transfers of power.
Katy Collin has a PhD in international relations from American University’s School of International Service. Her research focuses on the use of referendums in peace processes.