OSCE vs. Texas and Iowa: The Facts Behind the Fight

[Image courtesy of kyivpost]

One of the stranger stories to emerge from the pre-election “silly season” is the fight between state officials in Texas and Iowa and international observers from the Office of Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Cooperation in Europe (OSCE), who are in the United States preparing for their sixth mission to observe the election process since 2002.

Specifically, last week Texas’ Attorney General threatened to arrest observers from the OSCE/ODIHR team if they come within 100 feet of a Texas polling place on Election Day. Iowa’s Secretary of State issued the same warning earlier this week regarding any observers within 300 feet of an Iowa polling place.

The political roots of this dispute are depressingly familiar. In mid-October, a group of civil rights organizations issued a letter and press release calling on OSCE’s observers to target their efforts on states with voter ID laws and, in particular –

to deploy its limited election monitors in those states where restrictions on voting have been most extensive–Pennsylvania, Ohio, Florida, Texas and Wisconsin. Poll monitors should be particularly vigilant about requests for, and acceptance of, identification of those seeking to vote, particularly if certain groups, such as racial minorities and young voters, are being targeted.

That request raised the ire of voter ID supporters like Texas’ Attorney General (who has been defending his state’s ID law in court) and – in classic “friend of my enemy” style has drawn the OSCE into the ever-widening, if not terribly illuminating, debate over voter ID. The threat to arrest observers has itself divided the country, with some editorial boards likening Texas’ AG to an old-Soviet-style autocrat and others hailing the resistance to outside influence on the American election system. [Remember, it’s silly season.]

But what exactly is the nature of the dispute?

The OSCE (actually Office for Democratic Institutions and Human Rights, or ODIHR) observers are here as part of the United States’ signature to the Copenhagen Document in 1990. Paragraph 8 of that document says 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. They therefore invite observers from any other CSCE participating States and any appropriate private institutions and organizations who may wish to do so to observe the course of their national election proceedings, to the extent permitted by law. They will also endeavour to facilitate similar access for election proceedings held below the national level. Such observers will undertake not to interfere in the electoral proceedings.

Moreover, the Charter for European Security in 1999 says in Paragraph 25 that

We reaffirm our obligation to conduct free and fair elections in accordance with OSCE commitments, in particular the Copenhagen Document 1990. We recognize the assistance the ODIHR can provide to participating States in developing and implementing electoral legislation. In line with these commitments, we will invite observers to our elections from other participating States, the ODIHR, the OSCE Parliamentary Assembly and appropriate institutions and organizations that wish to observe our election proceedings. We agree to follow up promptly the ODIHR’s election assessment and recommendations.

Consistent with those commitments, ODIHR observers have been traveling to the United States for every major federal election beginning in 2002. In addition, American observers (short- and long-term) have a long history of participation in OSCE/ODIHR observations across Europe.

The current controversy stems from state laws regarding electioneering and observation activities at the polling place.

Texas Election Code § 61.003 prohibits “electioneering and loitering” within 100 feet of polling places, while Iowa Code § 39A.4(1)(a)(1)similarly prohibits “loitering [and] electioneering …” within 300 feet of a polling place.

Basically, ODIHR’s position is that they are lawful observers and that the US’ commitment to OSCE requires that they be permitted to observe. Texas and Iowa consider those observers to either be electioneering or loitering and thus in violation of appropriate state law.

Absent litigation – pre-election or post-arrest – we have no way of knowing which law wins. It’s basically a contest between a national commitment to international standards and federal respect for state sovereignty on election matters. I don’t envy any judge who has to try to balance the two.

I want to share the words of former DC election director Rokey Suleman, who sent me thoughts from the perspective of someone who has participated in OSCE missions in the past:

The OSCE are not election police. They do not interfere with the proceedings … International observers are paired up; each member is a citizen of a different country. This limits any cultural or political bias. Long-Term teams are tasked to look at the totality of an election system and Short-Term teams are tasked with monitoring Election Day polling locations. Observation sheets are gathered, debriefings held and monitors are sent home. The mission will analyze the data and release a report several weeks after the election commenting on if the elections met minimum international standards. The report may also make possible recommendations about improvements in the election process. The host country is free to accept or ignore the findings.

Rokey worries, and rightly so, that the current controversy could embolden other countries who are fearful of observation to restrict OSCE’s activities in their own country. Those fears weren’t soothed by a lengthy critique of the U.S. election system by Russia’s election director, who said

The electoral system and electoral laws in the United States are far from perfect. They are contradictory, archaic and do not correspond to the democratic principles the United States has declared as the basis of its foreign and domestic politics.

My personal opinion – based on numerous meetings with ODIHR observers for US elections 2002-2010 – is that these individuals pose no threat to the American electoral process. In my experience, while they may not understand or agree with certain laws or procedures – and might be critical of such laws procedures in their post-election reports – they take the “observation” part of their jobs very seriously and would never interfere with polling place operations on Election Day. It’s too bad that both sides of what Rick Hasen calls “The Voting Wars” – in this case, over voter ID – have drawn ODIHR into their quarrel. I just hope it doesn’t end up jeopardizing American observers on current and future missions abroad.

As Rokey notes, “at least the KGB in Belarus never threatened to arrest me.”