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Democracy and the right of citizens to choose their representatives are fundamental values in the United States, and ones that this country seeks to promote abroad as well. One way these values are promoted globally is through international election observation.
While people may think international election observation teams are a boon for new or emerging democracies, these efforts can benefit well-established democracies, such as ours, as well. Others do not see a role for anyone from other countries to play in observing, or commenting on, elections in the United States. And in some states, no one is permitted in the polling place who is not a citizen or registered voter.
At the invitation of the U.S. State Department, the Organization for Security and Cooperation in Europe (OSCE)’s Office of Democratic Institutions and Human Rights brings international election observers to this country to see first-hand how elections work here. These delegations most commonly visit during general elections, when teams of observers may fan out over a dozen or more states. Each team prepares reports on their observations that are compiled to create a national-level report of findings on the process. International election observation missions also offer recommendations on how the voter experience may be improved that are shared with election officials.
In 2010 and again in 2015 the National Association of Secretaries of State (NASS) issued a resolution and protocol that welcomed OSCE international election observers to observe elections in states where it is permitted by state law though this resolution was allowed to sunset in July 2020. International observers only come to states where they are permitted and welcomed.
The U.S. was a founding member of the OSCE and signed the 1990 Copenhagen Agreement, which gives member countries the right to observe each other’s elections. While U.S. citizens do go abroad to observe elections in participating countries through the OSCE, there are also other organizations that observe elections around the world. These include The Carter Center, The International Republican Institute (IRI), the National Democratic Institute (NDI) and the Organization of American States (OAS). The OAS sent observers to the U.S. in 2016, as well as the OSCE.
Many of these international election observation organizations have agreed to common standards for the conduct of good election observation by endorsing the Declaration of Principles for International Election Observation. In addition, individual observers are required to abide by a Code of Conduct while they are serving in this role.
State Laws on International Election Observers
Because elections are decentralized in the U.S., laws and customs regarding international observers vary. More than half of all U.S. states allow international observers, at least for some elections. Regulation of international election observers is a patchwork, and there is no dominant way that states address these observers.
Note that in 2020, access for international observers may be different than in previous years due to the covid-19 pandemic.
Explicit access for international observers
Four states plus the District of Columbia explicitly refer to international observers either in statute or written regulation. All except Tennessee do so to permit international election observers; Tennessee prohibits them.
Four additional states have statutory language that is inclusive of many types of observers, which may include international observers:
- Hawaii (HI Rev Stat § 11-132-C-6): The list of people allowed in a polling place includes "Any person or nonvoter group authorized by the chief election officer or the clerk in county elections to observe the election at designated precincts for educational purposes provided that they conduct themselves so that they do not interfere with the election process."
- North Dakota (N.D. Cent. Code § 16.1-05-09.1): “Election observers must be allowed uniform and nondiscriminatory access to all stages of the election process, including the certification of election technologies, early voting, absentee voting, voter appeals, vote tabulation, and recounts."
- South Dakota (S.D. §12-18-9): "Any person, except a candidate who is on the ballot being voted on at that polling place, may be present at any polling place for the purpose of observing the voting process. Any person may be present to observe the counting process."
- Virginia (Va. Code §24.2-604): "A local electoral board may authorize in writing the presence of additional neutral observers as it deems appropriate."
States that allow the public to observe elections
In at least eight additional states the election process, including pre- and post-election procedures as well as polling sites on Election Day are open to the public. These include: Massachusetts, Nevada, New Hampshire, Rhode Island, South Carolina, Vermont, Washington and Wisconsin. If the process is open to the public, this typically includes international observers as well. Many of these states specify that the public must stay a certain distance away from voters and ballot boxes, or that they must stay behind a guard rail while observing.
There are additional states whose statutes allow the public to access other aspects of the process, such as the testing of voting machines prior to an election or the counting processes after an election, but access to observing at polling sites on Election Day is more restricted. See the map on NCSL’s webpage on Policies for Election Observers for additional information.
States that have allowed international observers in practice
Since it is not common for international election observation to be explicitly permitted in statute or administrative rule, state and local election officials often consider permitting international observers on a case by case basis.
Twenty-three states have permitted international election observers in the past in practice, even though there is no formal statutory guidance: Arkansas, Colorado, Delaware, Georgia, Idaho, Illinois, Iowa, Indiana, Kansas, Kentucky, Maine, Maryland, Michigan, Minnesota, Montana, Nebraska, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Utah and West Virginia. Depending on the state, international observers could request access through the state election office, or county election offices, or both. Access may be granted on a case by case basis.
Some states or counties that have permitted international observers in the past may not continue to do so in the future, and jurisdictions that have prohibited observers in the past may reconsider at a future date as well.
States that prohibit international observers
Eleven states have statutory language that explicitly prohibits, or has been interpreted to prohibit, international observers: Alabama, Alaska, Arizona, Connecticut, Florida, Louisiana, Mississippi, Ohio, Oklahoma, Tennessee and Texas.
In most cases this is because election observation is limited to partisan observers who are often required to be residents or registered voters in the state, and affiliated with a political party or candidate. Alaska's statute, for example, requires that political party observers be citizens of the United States. In Connecticut the public may observe pre- and post-election procedures, but access to polling places is restricted to political party observers, voters, the press and poll workers.
In remaining states there is no statutory guidance for international observers, or a known practice on permitting or prohibiting international observer access.