Syed Sharfuddin
The author of this Report, Syed Sharfuddin, served as Special Adviser at the Political Affairs Division, Commonwealth Secretariat, London, from 2000-2006. In that period he observed elections in many Commonwealth countries and contributed to the Reports of various Commonwealth Observer Groups.
Introduction
The Commonwealth does not observe elections in non-member countries. Where it does, the observation is subject to receiving an official invitation from the concerned government and the Commonwealth Secretary-General certifying that the observation will add value to the democratic practice and processes in the election holding country. Democracies with strong electoral systems have their own local observers who endorse the election and certify that it is conducted freely and fairly and reflects the will of the people. Although all countries have their own local observers, in weaker democracies they lack neutrality and public legitimacy. These countries need neutral and non-partisan international observers to give a seal of approval for their elections.
Commonwealth observers are drawn from various Commonwealth countries and comprise constitutional experts, heads of election management bodies, retired politicians and representatives of the media, women’s groups, youth organisations and democracy strengthening non-government organisations. Sometimes the Commonwealth deploys its own staff team to observe elections. At the conclusion of their observation, they submit a report to the Commonwealth Secretary-General for onward transmission to the concerned government and electoral bodies before making it public.
The US never was nor is a Commonwealth member even though it may indisputably qualify for membership of the association on the basis of its strong democratic credentials and its former constitutional association with Britain. Therefore, it is inconceivable to think that the Commonwealth will ever constitute an observer group to monitor a US presidential election. However, the 3 November US presidential election has brought to the fore many aspects in common with the election of a Commonwealth country that it is hard to resist its analysis against the standard Commonwealth election observation template.
When Commonwealth election observers visit a country holding a general election, they examine its legal and electoral framework, the prevailing domestic political environment, its election preparations and availability of level playing field for all political actors. A few days before the poll, the Commonwealth mission deploys its observers and experts to monitor the campaign, the voting process, the count and tabulation of results. The mission also ensures that the results reflect the free will of the people and are credible and accepted by all stakeholders, including the major political parties and candidates. The Commonwealth observers’ report, which is issued in the corporate name but in their individual capacity, also mentions any shortfalls noticed by the mission in the conduct of the election as a whole, as well as includes recommendations for improvement, based on the country’s democratic strengths and international best practice.
In my analysis I have relied on the reports of the three international organisations, the OSCE, ODIHR and OAS, which deployed observers in many US states to observe the November election. I have also relied on the reports of other US domestic organisations, coalitions and media election-cells that followed continuously developments related to the US election not just on the Election Day, but also many days before and after the election. While I have used the Commonwealth template to analyse these elections, my analysis is entirely personal and does not represent the official position of the Commonwealth Secretariat or its Secretary-General who alone has the authority to constitute a Commonwealth mission to observe elections in member countries or comment on their outcome.
The 2020 US Election
This was one of the most participated elections in the US electoral history. According to many reports, nearly 160 million voters exercised their franchise compared to the 136.5 at the 2016 election. Before Election Day, more than 93 million Americans had cast their ballots. A majority of these voters was believed to be Biden supporters. On the Election Day, a majority of those who voted in person was believed to be Trump supporters. This estimate was confirmed as President Trump took the lead in the early count from the polls, while vice president Biden came from behind to lead the race in the later count from postal ballots.
At the 2020 election, four presidential candidates were registered in a number of states. Two of them were the incumbent Republican President Donald Trump who was running for a second term in office and former vice president Joe Biden who was the Democrat candidate against President Trump. An additional 80 presidential candidates, including 27 women, appeared on various state ballots. The US media-houses established special election cells to cover the electoral campaign. However, only President Trump and vice president Joe Biden received the most media coverage nationwide.
The presidential election was also combined with the election of the US Congress, comprising the House of Representatives and the Senate. There were 1,113 candidates, including 340 women, competing for the 435 vacant House seats. 151 candidates, including 42 women, competed for the 35 vacant Senate seats. Eleven candidates for the House stood unopposed. Elections were also held for state and local executive offices, state legislatures in 44 states, as well as 66 state judges in 31 states, along with various referenda and initiatives. At least 27 LGBTIQ candidates across 21 states and 13 persons with disabilities in eleven states appeared on the ballot for federal elections.
Electoral College
The Electoral College was established by the founding fathers of the federation but over the years it has undergone various amendments in the US constitution, losing its original spirit but retaining its key function. The Electoral College is formed after the states certify the results of the election in their counties to the House. The College comprises 538 electors. Its composition in each state is based on the state’s population. The College indirectly chooses an executive team of president and vice president from the same political party through a secret ballot a month after the November election. If the College fails to elect the president or vice president, the power to elect the executive head of the federation and his deputy is transferred to the US congress. In a dispute over their election, the US Supreme Court has the final authority to declare the winner.
The rules about the conduct of the Electoral College are not very clear although customarily they vote for the executive team in line with the popular vote. In as many as 32 states, electors can be fined or replaced in accordance with the respective state law if they do not vote in accordance with the popular vote. The ‘first past the post’ system combined with the ‘winner takes all’ principle in deciding the winner gives all the reserved electoral-college seats in a state to the winning political party, even if the popular vote in that state is cast in favour of the losing candidate. In every US election the results map of states represents either the red colour for the Republicans or the blue colour for Democrats. A winning team of president and vice president requires the combined strength of 270 electors from any combination of all the federating states and the District of Columbia to force the opposition team to concede the election.
Under the US constitution, presidential and vice-presidential candidates must be natural born US citizens, at least 35 years old, and resident in the US for at least fourteen years. Senate candidates must be at least thirty years old and citizens for at least nine years. Candidates for the House of Representatives must be at least 25 years of age and citizens for at least seven years. Both senators and representatives, when elected, must be residents of the state in which they are elected.
Election Administration
In the US, election administration is huge, running into thousands of officials. It is also highly decentralised, with no federal body mandated to oversee the entire electoral process. While this reflects the devolved feature of the federation, it also makes the US election a highly complex process with each state having its own laws and regulations for the conduct of election. In this equation the lawyers and courts have a much greater say in the conduct of election than politicians or other stakeholders. States are responsible for administering various elections with duties often delegated to some 10,500 jurisdictions across the country. In many states the ruling party appoints its election management body. However, in twenty states, including the District of Columbia, election management bodies are either bipartisan or independent.
The Campaign
The campaign for the 2020 election was heavily undermined by the COVID-19 pandemic. It limited the traditional political rallies, which unlike the campaign rallies in other countries are festive and colourful events. However, disagreements on topics of healthcare, Covid-19 response, police reforms, racial justice, gun laws, jobs, manufacturing and the environment bitterly divided the voters along party lines and threatened the racial and ethnic unity which has been the hallmark of the country’s strength and diversity. The long political process which started from the presidential primaries in the states of Iowa and New Hampshire yielded two final candidates in the form of the Republican President Trump running for a second term and former vice president Joe Biden who beat his party mate Bernie Sanders to emerge as the top Democratic challenger.
An interesting feature of the 2020 campaign was that the major presidential candidates were male and senior citizens. Joe Biden’s choice of a woman, Kamala Harris as his vice president nominee, was a strategic move, which helped him win women and minority votes. In the months before the election, over 400 lawsuits were filed in 44 states, some of which were still before the courts when the polls opened on 3 November. These lawsuits increased hundredfold after the Republican campaign challenged the results of the election in many states demanding a halt to the counting of postal ballots after November 4, and a recount in many states, some of which was allowed by the courts. From May 2020 until the close of the poll, there were more than 12,000 protests against the political and criminal justice system. A majority of these protests were peaceful and called for racial justice and police reforms.
Voter Registration and Identification
Although the US public takes its voting right seriously and the constitution protects the political rights of citizens, an estimated 5.2 million citizens are disenfranchised due to a criminal conviction, with many of them having already served their sentences. These restrictions disproportionately affect racial minorities. It is estimated that about 1.3 million African Americans are unable to vote as a result of these policies.
Voter identification requirements vary across the states. In 34 states voters are required to show identification before voting, with 18 of these requiring a photo ID. In 16 states, as well as in the District of Columbia, other identifying documents such as verification of signatures or showing personal information may be sufficient at the polling station. Absence of clear rules makes it hard to apply the same criteria for identification throughout all counties in all states. Where a voter’s address or identity cannot be established or where his name does not appear on the voter register, a provisional ballot can be issued at the polling station to enable the voter to cast the vote, subject to acceptance by the authorities at the counting stage. On 3 November a number of voters personally came to vote even after having cast their ballot by mail because they were unsure that it would be delivered to their respective county centre in time for counting.
Presidential Debate
In the November 2020 election, the outcome of the first presidential debate organised by the non-partisan Commission on Presidential Debates (CPD) became controversial after the event, with various stakeholders expressing dismay at the undignified tenor of the event. The two presidential candidates, especially the incumbent president, kept interrupting their opponent throughout the debate. This prevented them from addressing the key political and economic issues meant to inform the viewers about key electoral promises and polices.
The second debate was ultimately cancelled following President Trump’s Covid-19 infection and his surprisingly quick recovery, and also due to his refusal to participate in an online debate. His team also accused the CPD of bias and unacceptable aggressive style of the moderator at the first debate. Instead, two separate town hall debates, featuring each of the candidates were aired simultaneously, with the audience posing questions.
The third and final debate was conducted as initially planned. In response to the controversy arising from the first debate, the microphone of the opponents was muted during their opening positions on the agreed topics.
Vote Count
The Covid-19 pandemic exposed the weaknesses in the timelines for postal ballots to reach the county offices and be counted in time because a record number of postal votes, numbering around 27 million had not reached counting centres by the polling day. A majority of Democrats had preferred to vote ahead of the polling day resulting in extraordinary postal transactions and pressure on the postal service for timely delivery of the postal ballots to the respective election offices. This also added to the workload of election staff deputed for vote counting and tabulation. Months before the election, President Trump had talked about voter fraud through the postal ballot; yet states did not make advance preparations to adequately deal with the expected large volume of postal ballot, nor took sufficient steps to assure the Republican campaign that President Trump’s concerns were unfounded or had been satisfactorily allayed. Where states made arrangements to provide alternative voting methods due to Covid-19, there were fewer problems.
Election expenses
Even by conservative estimates, this was the most expensive US election in the country’s history with about 14 billion US Dollars after all reports are filed post election. There was also an increase of 100% in campaign expenditure over the 2016 election. The US will need to place a cap on this this sharp rise in campaign expenditure in order to reduce the influence of the rich corporate donors on the elected representatives and, without questioning their integrity, affect their independent judgement when making laws and national policies for the American people.
Role of the incumbent President
This report will be incomplete if it did not mention the way President Trump took these elections. From the very start he played the role of a spoiler in the game and continued to be a non player after the tabulation showed that he remained far short of the required 270 electors to win the second term. His supporters, excluding the hardliners, were shocked at his refusal to concede the election without a bitter legal fight. Some senior Republicans publicly expressed their frustration with this attitude advising President Trump to accept the defeat and exercise restraint. This had a positive impact to the extent that for a few days after 4 November, President Trump stopped writing his early morning Tweets claiming that he was the winner in the election. It was hoped that ultimately, after recounts in some battleground states he would accept the results of the election without making a conceding statement.
It is customary that when an election is announced, the lame duck administration does not make any policy change or take action which may impact of the ability of the next administration to act independently. However, despite this established tradition President Trump went ahead with the appointment of a Judge of the Supreme Court to fill the vacancy created by the demise of the conservative Justice Ruth Bader Kingsburg. Amy Coney Barrett’s nomination was announced by President Trump less than a month before the 3 November poll. Moreover, a week after the election, President Trump replaced three top Pentagon officials in the Department of Defence with persons who, according to news reports, were among his strong supporters in the first term. As of writing this paper, President Trump also refused to allow his officials to provide security briefings to the President-elect Joe Biden because this would contradict Trump’s legal challenge to the victory of Mr Biden in the election.
Violence
Concerns about post election violence or civil unrest were proved incorrect in the aftermath of the vote count, even through the announcement of results in some states was delayed and president Trump did not help things by unilaterally declaring his victory and casting doubts on the genuineness of the yet to be counted postal ballots. Credit for this goes to the American public for having faith in their system and to the election administrators in the concerned states who assured the people that they will not certify the results until each and every vote is counted. A majority of the leaders of the two main political parties called for unity and placed their full weight behind the electoral process to auto correct any mistakes. Vice president Joe Biden also delayed his victory speech until it was clear that he had comfortably crossed the required 270 mark in the polls.
Election Observation
The US is quite advanced in domestic election observation and has successfully shared its experience with nascent and emerging democracies around the world through USAID programmes. The US presidential election is monitored by thousands of local volunteers and observers in different states. Political parties also field official observers at polling stations to observe the transparency of the voting and counting process.
At this election, in addition to several hundred local organisations and grass roots election watch groups, a national, nonpartisan election protection coalition coordinated with more than 300 local, state and national partners and deployed 45,000 observers for the election. It also ran a 24/7 hotline operated by some 43,000 volunteers to provide election information to voters and answer their concerns and questions. Some organisations also conducted pre-poll surveys and provided nationwide legal support for disputes arising during the polls. National media houses also conducted pre-poll surveys and deployed reporters for election observation on the polling day.
Three international organisations, namely the OAS, OSCE and ODIHR deployed their observers for the November Elections. The OSCE deployed 52 observers, drawn from 39 participating states. It covered 30 states, as well as the District of Columbia. The ODHIR mission comprised 50 observers. The OAS sent 28 observers and experts drawn from 13 OAS countries. Their observers were present in four states and the District of Columbia.
Recommendations
The US president and vice president are indirectly elected by an Electoral College instead of the direct popular vote. Although the system is an essential feature of US federalism and has worked for over 140 years, it would be advisable for the Congress to review this arrangement and let the people directly elect their chief executive and his deputy through popular vote. This will also remove the present anomaly of a candidate receiving the popular vote but not becoming president because he fails to get the 270 votes from the Electoral College. This is an emotional issue for the US voters who may need a public debate on this change to reach a consensus on how to elect their president every four years.
In many states, ex-felons are not allowed to vote in an election. This disenfranchises the Afro-American and ethnic minority voters more, as a large number of ex-convicts who have served their time belong to this group. At this election the state of California decided to give its ex-felons the right to vote which is a welcome start. Other states ought to follow California’s encouraging example to amend their electoral law for the future. While the US constitution lays great emphasis on individual freedoms and importance of representative government, this restriction needs a review, where applicable, to make the voting exercise more inclusive and fair for all communities.
There is a need for states to review current procedures for postal ballots, taking into account the fact that in the future more voters may use the postal ballot or vote online instead of physically visiting the election booths on polling day. Over the past few elections, automation and smart IT equipment have been successfully integrated into the US election machinery. This experience can be used to improve the process through which the timelines for postal ballots are set up, and arrangement are made for their collection and delivery by US mail to the relevant counting centres. The aim of this review should be to finalise the results and tabulation within hours of the close of the polls instead of days, thereby making the process more credible, transparent and indisputable by losing candidates.
Some states have installed automatic ballot reading machines. These cannot provide an audit trail in the event these are challenged by a candidate. The physical hand count of the ballot papers in the state of Georgia in the aftermath of the 3 November election should be used as an example to minimise counting errors and create an audit trail to be randomly checked in the event of a challenge, instead of a recount of the votes in the entire county or state.
There are 18 states, which do not allow independent observers to have access to the polling stations, or their laws do not specifically provide for international observation. Although in the 2020 election this could be a valid reason due to Covid-19 concerns, the restriction does not sit well with the requirement of transparency and voter confidence. All states should enact legislation to open up polling places for voting, count and tabulation to local and international observers in addition to the party representatives currently permitted. The argument of space constraints does not hold ground because these are the same arguments cited by other democracy-deficit countries where the US has been advising election management bodies to be more transparent in the conduct of their polls and count.
The US Congress should consider making it illegal for the outgoing president to make senior level appointments to the Supreme Court and other government departments three months before the November election, including after the election day until the inauguration of the new president in January. This legislation would also need to restrict the power of the Senate to confirm any presidential nominations made during this period.
The Commonwealth Latimer House Principles on the separation of powers between the executive, legislative and judiciary are universally applicable to democracies, including the US. The power of the president to appoint his chosen judges at the US Supreme Court negates one of these principles if the party of the president has a majority in the senate, as was the case during 2016-2020. This has the potential of making the president commander of the armed forces, which he is under the constitution, as well as commander of justice. Such concentrated power was formerly associated with emperors. In a democracy too much authority should not be vested in one person especially if he holds the nuclear codes.
There has been a lot of talk about the reform of the US electoral system in the area of disenfranchisement of ethnic minorities, gerrymandering and removing out-dated and contradictory regulations, expanding voter education and standardise electoral procedures across states. The US will do well to establish an independent and neutral body to resolve election related disputes. These reforms will improve the US democratic system, as well as enhance its image in other countries to promote representative democracy.
At this election, as in all previous US elections, the question of campaign financing raised questions. The difference this time was rise of many grassroots fundraising organisations in individual states which raised campaign funds not only for their favourite parties in the respective states but which also funded campaigns of their party’s candidates outside their states. After the political dust settles in the New Year, the US congress may consider creation of a bipartisan federal body to come up with uniform rules and procedures for all aspects of election related expenditure and implement these across all states. This body should be made fully empowered and responsible to enforce the rules governing federal campaigns and finance.
The Commonwealth as a Brand
The Commonwealth name is not copyright protected worldwide but the Commonwealth remains a global brand, which represents the collective strength of its 53 diverse members. However, the Commonwealth has not capitalised on this advantage and has remained inward looking. For instance its rich election observation work of over 40 years spreading over 40 countries with a record 160 election observations, is unparalleled in its peer election observation bodies, yet its collaboration with other democracy organisations outside its membership is limited. The Commonwealth has also not shown any keen interest to use its expertise to assist and promote democracy globally.
In the United States, the Carter Centre, the National Democratic Institute, the National Endowment for Democracy, Ford Foundation, Democracy International, the US Institute for Peace, and a host of other democracy organisations can share their experience with the Commonwealth and even join hands with it collectively observing elections abroad, if the Commonwealth is willing to enter into partnership agreements with them for collaboration on broader election observation and making its technical experts available for democracy promotion in fragile or conflict affected countries across the globe. This would benefit the Commonwealth more than its collaborating partners. While its partners would benefit from the Commonwealth’s comparative advantage and expertise in democracy promotion activities, the Commonwealth can use their technical personnel and resources to meet the demands of democracy promotion in member countries.
In order to reach this partnership, the Commonwealth will need to shed off the fear of US institutions dominating the Commonwealth landscape. Due to its small budget and the majority of its members being small states or weak economies, the Commonwealth fears that getting closer to the bear could end up in a fatal hug of the beast leaving them overpowered and unable to play the role of an equal stakeholder in such a partnership. However, the few but successful contacts established between the Commonwealth and the US democracy institutions in the past, do not support this assumption. Moreover, the terms of the partnership can be written in such a way as to retain its independence in all aspects of election observation, such as choosing election observers according to the established Commonwealth criteria, writing their terms of reference, deploying experts, and writing and finalising observers’ reports. Where partner organisations can be useful to the Commonwealth is the post election period when the important work of helping countries to implement the recommendations of the observer reports starts. Due to lack of resources most of the time the recommendations of observers are not followed up at all, and where these are pursued, they do not continue to be supported until the next election in the concerned country.
It is also true that the Commonwealth is not financially well endowed to play a larger role globally, observing elections in non-member fragile democracies or focusing on the world’s large democracies to learn from their good practices, identify their comparative advantages and use these to enrich its own democracy work. The United States is a vast country and its quadrennial presidential election is like observing elections in 50 countries for choosing a common president and vice president, as well as electing their state and federal legislators and local representatives. But there are ways to go around this problem and make an opportunity out of a challenge in order to remain a world leader in the area of election observation, which the Commonwealth is eminently qualified to claim.
It is true that the Commonwealth does not have the budget to observe a US election even if an invitation was secured from the State Department for the Commonwealth to send observers. But it can collaborate with the OAS to jointly observe the US presidential election because thirteen of the 35 members of the OAS are Commonwealth countries. The OAS observer mission to the 2020 US presidential election, included two observers from Canada and Trinidad and Tobago. The OSCE also joined hands with OHIDR in observing the November 3 election and issued a joint report of their observation. The pattern of international organisations joining hands for the common purpose for undertaking large and resource intensive projects is something the Commonwealth democracy programme should look into and integrate in its activity.
The Commonwealth election observation has sometimes been misunderstood as a one sided activity where the more experienced democracies in the membership happily monitor elections in the weak and fragile democracies in the organisation but without practicing reciprocity or issuing return invitations to them to observe their elections. This makes Australia, New Zealand, India, Canada, the UK and few other countries which do not invite the Commonwealth to observe their elections stand in one group, while a large number of African, Caribbean and Asian members which are always too eager to request the Commonwealth to observe their elections and issue a certificate of good health as a mark of approval, stand in the other group. This approach is fundamentally wrong because it creates a feeling of a membership of political un-equals, whatever the reality. In actual fact, the strong democracies in the Commonwealth have a lot to share with the fragile democracies in terms of good practice and how democracy theories and election laws are correctly interpreted and implemented on the ground. In non-election time, some of these countries do contribute to election observer missions or organise election-related workshops to share experience with the election management bodies of other member counties.
In some countries annual platforms for this purpose have existed such as the democracy workshops of the Cambridge Centre for Science and Policy, but these can never be a substitute for the election officials of a third country observing a live election and seeing how local election offices are involved at grass roots level for managing an election, training election staff, improving postal and physical voting procedures, employing ITCs in the count and tabulation and improving complaint processing mechanisms. This also gives the observers an opportunity to point out the inherent weakness of a mature democracy such as those witnessed in the US election lately and their reports could be helpful in improving processes and procedures for next election.
All this requires a rethink of the way the Commonwealth undertakes its election observation activity, how it collaborates with other outside institutions for effective partnerships and how it finances these activities for the Commonwealth’s own and from other externally funded resources. The Commonwealth should draw up a new comprehensive election observation strategy for Heads’ approval at the next CHOGM to continue the good work it has been doing with greater efficiency and retaining its long-term leadership role in this area.
Conclusion
The 2020 US election was the largest electoral participation by the American people in choosing their political representatives freely without any violence or intimidation. There was no evidence of cyber manipulation of the votes, nor any clandestine interference by another country. There were also no large scale voting or counting deficiencies or systemic wrongdoings. Although voters in some states received fake robotic text messages advising them no to go out to vote on 3 November but do it the next day, a large number of voters visited the polling stations and voted freely. The polling staff in all the states, including the US postal service staff, did an excellent job of meeting the extra workload and discharged their duties responsibly and with diligence. Law enforcement agencies ensured the security and safety of the voting public, as well as polling staff. Political parties also behaved responsibly by following the due process in referring complaints and issues to the relevant election managers and their legal teams. Despite the negative impression generated by some media reports that this was a crazy and controversial election, the election process as a whole was robust and credible. The response of the election management bodies was also positive and helpful in renewing the confidence of the American people in the ability of their time tested electoral system to address the problems effectively and reach satisfactory resolution. However, this election has highlighted quite a few issues and there are many lessons to learn but good news is that the US democracy has both the resilience and resources to implement any learning in its future electoral processes.
13 November 2020
For further reading please see reports of the OSCE-PA and OAS observer missions.
https://www.osce.org/files/f/documents/9/6/469437.pdf
http://www.oas.org/documents/eng/press/Preliminary-Report-of-the-OAS-EOM-USA-2020.pdf