“Transparency,” in Electoral Integrity in America: Securing Elections

Nonpartisan election observation has become an almost universal global practice (Kelley 2012). By 2006, a total of 1,759 election events in 157 countries, or 80% of elections across the world, were observed by international organizations (Hyde 2011). Citizen observation activities were similarly widespread. Many of these observation missions were funded or supported by the government of the United States or were undertaken by U.S. organizations. Nonpartisan election observation by international or domestic organizations continues to be seen as a principal tool in the practitioner’s toolkit to promote credible elections. Scholars and practitioners note that election observation can contribute to better elections by promoting adherence to international obligations and commitments (Carroll and Davis- Roberts 2013); promoting public trust and confidence in the electoral process and thereby influencing participation (Alvarez, Hall, and Llewellyn 2008a; Birch 2010; Norris 2013); detecting electoral malfeasance (Hyde 2011); influencing perceptions of fairness of the electoral institutions and the electoral environment (Hyde and Marinov 2014; Bush and Prather 2017); and providing analysis and actionable recommendations for election administrators should they seek to improve electoral processes in the future (Martinez i Coma, Nai, and Norris 2016).  Nonpartisan observation can also facilitate citizens’ participation in the public affairs of their country, and therefore there are reasons to assume that observation can help improve election processes across regime type.

While the U.S. views itself as a global leader in democracy, with strong institutions and traditions of political participation, it is an outlier in terms of the degree to which election observation is consistently welcomed and conducted at home across the 50 states. This situation is particularly ironic because the United States is a vocal supporter of nonpartisan observation in other countries. There are many instances in the United States when interest in conducting nonpartisan observation of elections has been met with skepticism, or even outright hostility. For example, in 2012 the secretary of state in Iowa and the attorney general in Texas made it clear that international election observation by the Organization for Security and Co- operation in Europe (OSCE) would not be welcome, despite the international commitments of the United States to invite and accept observers (Cervantes 2012; CSCE/ OSCE 1990). This skepticism toward observers continues, despite evidence that confidence in the honesty and credibility of electoral processes has declined in the United States over the course of the past decade (see Hasen, this volume).1

Although some domestic and international groups conduct observations in the United States, these efforts remain limited, as the practice, experience, and expectations regarding observation vary significantly across the states (Carter Center and National Conference of State Legislatures 2016). For example, since 2004, at the invitation of the U.S. State Department, the OSCE’s Office of Democratic Institutions and Human Rights has deployed international election observers. In 2016 the Organization of American States (OAS) also deployed a mission to the United States. At the same time, U.S. civic nonpartisan organizations, often focused on a specific local context, are active in states across the country. In some states, scholars have conducted “educational” or academic observation missions, gaining access to the electoral process with the goal of conducting research and providing insights or recommendations for future processes. And of course, media and partisan observation of elections is a well- known practice.

This chapter presents Carter Center research on questions regarding exactly who can observe what, when, and where, and the variations across the 50 states, particularly regarding nonpartisan observation. Our analysis starts with the premise that the decentralized nature of election administration in the United States is relatively unique and accounts for some of the variation in practices (see Vickery and Szilagyi, this volume).2 The core of the research outlined below documents the extent of the variation, providing a thorough review of the laws, regulations, and policies across the states regarding who can be considered an observer and what parts of the electoral process observers can access.

While the decentralized structure enables and accounts for much of the variation, our analysis also extends to a preliminary exploration of other possible contributing factors, as well as the potential consequences of the relatively restrictive access for observers in the U.S and the many variations across the states. Are there any discernible patterns to the levels of observer access or restrictions? Why are some states more restrictive than others? What are the implications of this variety on the electoral and administrative processes and on citizen participation? If nonpartisan election observation has the benefits that the United States sees as valuable internationally in other electoral and political contexts, should the United States not consider ways to increase the role and contributions that election observation can make at home?

This chapter considers each of these questions in light of varying restrictions and access for observers across U.S. jurisdictions. The Carter Center’s research concludes that levels of access for nonpartisan observers fluctuate across the country; rules for observers are not always standardized across a single state; and a number of states provide little or no access to nonpartisan observers. Inconsistencies in observer access conflict with the United States’s international commitments and indicate a general disregard for nonpartisan observation in the United States as a beneficial tool for democratic elections, which we discuss in further detail. First we offer an overview of the Carter Center’s review and analysis of the regulatory landscape regarding observation across the 50 states and the District of Columbia, followed by an analysis of trends in policy and practice.

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