Who’s Observing at the Polls?

By Wendy Underhill | Vol . 24, No. 38 / October 2016

NCSL News

Did You Know?

  • “Election observers must be allowed uniform and nondiscriminatory access to all stages of the election process,” according to North Dakota code.
  • Several states do not specify rules for observers, leaving it up to local election officials.
  • Non-partisan, data driven observation can help improve the voting experience.

Voters are the most important people at the polling place on Election Day; it’s their show. Poll workers are important players too—they manage the production. And yet there may be a number of walk-on parts for people who are at the polls to observe rather than to participate.

Partisan poll watchers are common. Nonpartisan election observers are also out and about during general elections. Some are academics, some are international observers, some are representing citizen groups and some are just interested citizens. The Carter Center and NCSL teamed up this year to figure out exactly who’s doing all these observations, and why they do it.

The “why” is simple. “Election observation helps to strengthen election processes by providing information and recommendations to hard-working and over-stretched election administrators as the election unfolds,” says Avery Davis-Roberts from the Carter Center. She points out that observation regulations vary greatly across jurisdictions, and that having clearer rules would help “institutionalize trust and good communication between observers and election administrators.”

The rules may vary for different types of observers, but all observers in the U.S. have at least three things in common:

Legislators set the policy (or at least can choose to do so). None are permitted to interfere with the voting process. All aim is to ensure that the election is well-run, often by providing feedback to election officials.

State Action

Partisan Observers. Commonly known as poll watchers, these party people are deployed to do two things: report to their party headquarters about who has voted and who still needs a “nudge” to vote, and watch for any missteps in election processes. They’ve been in use for at least 100 years as a way to promote election integrity, with the idea that if both parties are watching, it’s much harder for either to tamper with the votes. Virtually all states govern how many watchers a party can send to each polling place, and at least 41 states have some kind of accreditation process for them.

Nonpartisan Citizen Observers. This category includes citizens and members of civic organizations who are interested in the integrity of the election for its own sake. In some cases, they are able to report election administration issues as soon as they arise, thereby helping administrators to respond immediately.

Often, these observers volunteer because they have some concern about procedures, and end the day by providing testimonials to the good work they observed. Nine states and the District of Columbia have explicit statutory provisions to allow nonpartisan observers, and nine states provide general public access. Most other states provide access on an ad hoc basis.

International observers. The United States is a founding member of the Organization for Security and Cooperation in Europe (OSCE), and signed the 1990 Copenhagen Document, an agreement that gives member countries the right to observe each other’s elections. At the invitation of the U.S. State Department, OSCE sends international election observers to this country to see first-hand how elections work. This year, the Organization of American States will also send observers. 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.

Six states plus the District of Columbia explicitly allow international observers, either in statute or regulation. Of these, two states (Missouri and New Mexico) and D.C. use the term “international observers” as part of their regulatory language and the other four (Hawaii, North Dakota, South Dakota and Virginia) have statutory language that is inclusive of many types of observers. Some states do not permit international observers.

Academic observers. A much smaller number of academics look at election procedures and administration. States may be explicit about granting permission, such as New Mexico, where statute (N.M. Stat. Ann. §1-1-3.2) identifies an observer as “a person registered with the United States department of state as an international election observer or a person registered with the New Mexico secretary of state who is an academic engaged in research on elections and the election process.”

Federal Action

The Voting Rights Act of 1965 allows the appointment of federal observers from the Department of Justice (DOJ) to monitor elections when there are concerns about compliance with federal law. Questions about racial discrimination during the polling process, compliance with bilingual election procedures, inadequate accessibility for disabled voters or similar issues can trigger their deployment. These observers are trained to remain neutral and impartial.

In 2008 and 2012, the DOJ assigned federal observers to 23 states. Following the decision of the U.S. Supreme Court in Shelby Co. v Holder (2013) the number of federal observers this year will be much smaller. So far, as determined by court orders, jurisdictions in five states (Alabama, Alaska, California, Louisiana and New York) will receive federal observers.

 

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