A Guide To Election Observer Policies In The United States
A Guide to Election ObserverPolicies in the United States
ContentsOVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . 1ACCESS TO THE ELECTORAL PROCESS . . . . 7Who Can Observe? . . . . . . . . . . . . . . . . . . . . . 2What Role Do Federal Observers Play? . . . . 11Summary of Findings . . . . . . . . . . . . . . . . . . . . 2Legislative Action . . . . . . . . . . . . . . . . . . . . . 11TYPES OF OBSERVERS . . . . . . . . . . . . . . . . . . 3Case Studies . . . . . . . . . . . . . . . . . . . . . . . . . 12Partisan Citizen Observers . . . . . . . . . . . . . . . 3INTERNATIONAL ELECTIONOBSERVATION ABROAD AND AT HOME . . 13Nonpartisan Citizen Observers . . . . . . . . . . . . 4International Nonpartisan Observers . . . . . . . 4Academic Observers . . . . . . . . . . . . . . . . . . . . 5State Laws on InternationalElection Observers . . . . . . . . . . . . . . . . . . . . 14Accreditation Process . . . . . . . . . . . . . . . . . . . 6About This GuideThe information in this booklet was compiled fromvarious sources, including state statutes and regulations, state election manuals, interviews and follow-upconversations with state election directors, secretaryof state websites, nonpartisan organization websitesand publications, news and media articles, and U.S.Department of Justice publications. It is accurate as ofOctober 2016.Community members greet outside a polling station.The research for this project was conducted byThe Carter Center, with support from the NationalConference of State Legislatures. It was madepossible through generous grants from the MacArthurFoundation. This information is available online atthe NCSL website, where it will be regularly updated.To offer comments or corrections, pleasecontact elections-info@ncsl.org.Voters wait in line to cast their ballots.
OVERVIEWElection observation is the process by which parties,candidates, citizen groups or independent organizations deploy observers to witness the electoral process.Different types of observers have very differentgoals for watching an election. While observers frompolitical parties seek to ensure that election administration does not disadvantage their campaigns,nonpartisan observers focus on checking compliancewith election administration regulations. Crediblenonpartisan observers are interested in promotingintegrity, transparency, and efficiency in the electoralprocess and have no stake in the political outcome.During contentious or highly competitive elections,impartial observation can provide an importantavenue for reliable feedback about which aspects ofan election went well and what parts could improve.Credible observers can help ensure that proceduresare properly followed and can increase public confidence in well-run elections. Nonpartisan international observers often use data-driven methods aimedat promoting transparency and integrity in elections,which in turn can improve the voter experience.International observers may or may not be permittedby state law, or the interpretation of state law.In the United States, observers are trained toattentively watch without interfering. They examinenot only Election Day activities, such as the castingof ballots, but also pre-election and postelectionprocesses. Observer groups may watch such activities as voter registration, testing of voting machines,ballot tabulation and recounts, and much more.They gather relevant information about the electoralprocess and can report back to election officials whenproblems arise. Following an election, observer organizations that are not affiliated with political parties,whether international or domestic, often producepublic reports to share key observations. These reportsinclude recommendations that aim to assist electionadministrators in improving efficiency and accountability for future election cycles.A Guide to Election Observer Policies in the United States“It’s not, from our perspective, an exercisefor observers to say ‘Got ya!’ but ratherit’s about understanding that things areworking the way they’re supposed to,because that does increase confidence.”— Pam Smith, president, Verified Voting FoundationThe United States’ highly decentralized electionadministration system can make election observationespecially challenging. While most democracies havea more centralized process, U.S. election administration occurs largely at the county level. As a result,regulations that govern observers vary widely acrossthe 50 states and even across counties within asingle state.Details regarding observers’ proximity to pollingplaces, how many observers can be present, whichtypes of observers are permitted, which parts ofthe electoral process can be observed, etc. changedepending on state election codes and countyregulations. Legislators, therefore, play a key role indetermining policies that reinforce transparency andprotect against electoral fraud in very practical ways.Their decisions determine not only the guidelinesby which elections are conducted and the qualityof election administration, but also the level towhich observers can be involved in collaborating tostrengthen elections.“We emphasize that our observers areobservers. They’re not to interfere at anytime. Our experience in Nebraska hasalways been that the election workers andadministrators have been very cooperative.”— Senator Adam Morfeld, Founder,Nebraskans for Civic ReformThe Carter Center and the National Conference ofState Legislatures (NCSL) partnered to examine election observation in the U.S. and the main regulationsthat shape observer access. In this 50-state statutoryresearch, we look at the relevant laws and practices1
for multiple types of election observers.This booklet answers the following questions: Who can observe elections in the U.S., includingpartisan, nonpartisan, and international observers? What is the process for accrediting observers? Whoultimately decides whether observers are permittedin a state or county? Which aspects of an election can observers watch?Does this vary based on the type of observer? What role do federal observers play? Have states had past experiences with electionobservers (case studies)?Who Can Observe?Several kinds of groups conduct election observation inthe U.S. This study examined the rules for four groups.Partisan citizen observers. Usually referred to as pollwatchers or challengers, these observers representpolitical parties, candidates, or groups in favor of oragainst a ballot proposition. Partisan citizen observersgenerally guard against activity that could underminetheir own party or group’s interests. These observers arepermitted by statute in most U.S. states.Nonpartisan citizen observers. Many U.S. nonpartisanorganizations train citizens to observe elections, andmost groups are based in the states or counties in whichthey seek to observe. These observers work to protectthe integrity of the electoral process and advanceelectoral quality and accountability regardless of thepolitical outcome.International nonpartisan observers. Internationalnonpartisan organizations deploy teams of internationalobservers, who are non-citizens and non-residents of thecountry where an election is being held. They typicallyfollow a professional methodology and assess electionsbased on international and domestic standards for democratic elections. Impartial international observers seek toprovide a credible, data-driven assessment of the conductof an election and are not interested in the politicaloutcome. In 1990, the U.S. committed to inviting andproviding access for international observers when itsigned the Organization for Security and Cooperation inEurope (OSCE) Copenhagen Document.2Academic observers. Academic observers are associated with higher education institutions and universityinitiatives. Many academic observers study electionswith a goal of strengthening democratic practices. Likenonpartisan observers, academics generally do notpromote a particular campaign or political outcome.There are other types of observers apart from thoseexamined in this study, including but not limited tomedia observers, youth observers (students learningabout the electoral process), state-appointed observersand federal observers.Summary of Findings Almost all states, with a few exceptions, have statutory provisions for partisan citizen election observers.It is common practice for political parties and candidates to appoint poll watchers and/or challengers toobserve elections. At least 35 states and the District ofColumbia allow nonpartisan citizen observers to bepresent at elections. This includes explicit accessin statute, access in practice, and public access toobserve the elections. Of these:– Nine states and the District of Columbia haveexplicit statutory provisions to allow for nonpartisan citizen observers: District of Columbia,Hawaii, Illinois, Maryland, Michigan, NewMexico, North Dakota, South Dakota, Tennesseeand Virginia.– Nine states allow the public broad access to theelection process, including observing polling placeoperations on Election Day (public access includesmembers of nonpartisan citizen groups): California,Massachusetts, Nevada, New Hampshire, RhodeIsland, South Carolina, Vermont, Washingtonand Wisconsin. Note that other states may permitpublic access to other parts of the election process,such as the pre-election testing of voting machines,the counting process or postelection audits, butdo not permit the public to access polling sites onElection Day.– 16 states don’t explicitly authorize nonpartisancitizen observers in statute, but allowed themin practice in 2016. This may be left up to theThe Carter Center and National Conference of State Legislatures
discretion of state or local election officials and evaluated on a case-by-case basis: Colorado, Delaware,Idaho, Kansas, Kentucky, Louisiana, Maine,Minnesota, Montana, Nebraska, New Jersey, NewYork, North Carolina, Ohio, Oregon and Utah. At least 33 states and the District of Columbiaallow international nonpartisan observers to be presentat elections. This includes explicit access in statute,access in practice, and public access to observe theelections. Of these, six states and the District ofColumbia have explicit guidance in statute or ruleto allow for international nonpartisan observers.See the section “International Election ObservationAbroad and at Home” later in this booklet formore information. Many states have had experience with academicobservers, though this category of observer is typicallynot explicitly permitted in statute (with the exceptionof New Mexico — see below for more details). In somestates, academic observers may gain access to pollingplaces through the same process as nonpartisan citizenobservers, or access may be granted on a case-by-casebasis. Here are a few examples of when academicobservers have contributed to the practical administration of elections:– The joint CalTech/MIT Voting TechnologyProject conducted ongoing work on voting technology as well as line optimization and poll workermanagement. Today, MIT’s Election Data andScience Lab continues the work.– The University of California, Berkeley’s ElectionAdministration Research Center (EARC)conducts research and develops materials for theimprovement of elections within the U.S. andinternationally.An election worker waits outside a polling station.– Universities often observe at polling places toprovide data or recommendations to the stateor local election authorities. See, for example:The University of Maryland report on WaitTime Observations from the Maryland 2014General Elections; The University of Colorado,Denver report on Changing the Way ColoradoVotes: A Study of Selected Reforms; A jointreport from professors at Utah State University,the University of Utah and Brigham YoungUniversity on Evaluating the Feasibility of Voteby Mail in Utah; New Jersey’s Rutgers School ofLaw report The Perfect Storm: Voting in NewJersey in the Wake of Superstorm Sandy; and theUniversity of New Mexico’s Center for the Studyof Voting, Elections, and Democracy’s electionadministration reports.The variation in terminology between states regardingregulation of election observers, along with varyinginterpretation in practice of statute and rule over time,makes the categorization above based to some extenton judgment. If you believe your state is not categorized correctly, please contact NCSL’s elections teamat elections-info@ncsl.org.TYPES OF OBSERVERSPartisan Citizen ObserversIn the U.S., voters can serve as election observersfor the parties they support. Appointed by politicalparties, candidates or ballot issue groups, theseindividuals are partisan citizen observers. They arereferred to by many different names in the U.S. butA Guide to Election Observer Policies in the United Statesare most commonly called poll watchers and challengers. While partisan observers’ specific responsibilities vary by state, they generally watch the casting ofballots, any testing of voting equipment, and countingprocedures. Unlike other observers examined in thisstudy, poll watchers and challengers have a specificor partisan interest in election results. They represent3
political candidates, parties, and groups that advocatefor or against specific policies.A poll watcher’s primary purpose is to ensure thattheir party has a fair chance of winning an election.Poll watchers closely monitor election administrationand may keep track of voter turnout for their parties.They are not supposed to interfere in the electoralprocess apart from reporting issues to polling placeauthorities and party officials.Challengers also watch to make sure proceduresare properly followed in polling places, but theyare distinct from partisan poll watchers in thatthey have power to contest voters’ eligibility tocast a vote. A challenged voter may be requiredto prove his or her eligibility with documents andidentification before proceeding to cast a regular orprovisional ballot.The majority of U.S. states have statutory regulations permitting partisan citizen observers. Most statesspecify how many partisan observers can be present,how they are appointed or trained, when and inwhich polling places they can be present, what theirprivileges and responsibilities are, and so on.Nonpartisan Citizen ObserversDomestic nonpartisan organizations frequently seekto observe U.S. elections, and they train citizens toconduct impartial observation. Some organizationsobserve a single stage of election administration,such as postelection audits or recounts. Others seekto view all pre-election, Election Day, and postelection processes. While some states have no statutoryprovisions to allow nonpartisan citizen observers,others grant special approval for them to watch theelections. Nonpartisan citizen observers can usuallyobserve in states that allow observation by the public,within a designated area or behind a guardrail.Like international observers, nonpartisan citizenorganizations have no stake in the political outcomeof an election. They often will produce public reportswith observation summaries and recommendationsfor how to improve future elections. Their presencecan help build public trust in a transparent, verifiablydemocratic electoral process.4“We noticed a sudden spike in thenumber of challenges [by political partyrepresentatives] in a midsized town in thestate. Within minutes our observers wereable to report this. We could respond almostin real time! [The public] was so informed.— Mark Halvorson, founder and board member forCitizens for Election Integrity Minnesota (CEIMN),about using an online platform to update the publicabout the conduct of elections. Halvorson wasreferring to his group’s work during the 2008Minnesota Senate statewide recount.Nonpartisan observation can provide a particularlyimportant way for citizens to encourage accountabilityin the democratic system outside of party structures.In some cases, nonpartisan citizen observers are ableto report election administration issues as soon asthey arise, thereby helping administrators to respondimmediately and avoid further problems.International NonpartisanObserversInternational election observations are widelyaccepted around the world today. These areconducted by intergovernmental and internationalnongovernmental organizations to provide animpartial and accurate assessment of the nature ofelection processes. These assessments are created forthe benefit of the population of the country where anelection is held and to demonstrate the interest of theinternational community.Observers follow professional, data-driven methodologies that are developed by each organizationconsistent with international human rights standardsand national laws. International observers must beinvited by a country’s electoral management body andwelcomed by all major political parties. Internationalobserver groups go to great lengths to ensure theprofessionalism and integrity of long-term andshort-term observers and members of other kinds ofobserver delegations. As a result, anyone participatingThe Carter Center and National Conference of State Legislatures
in one of these capacities on an election observationmission is expected to sign the Code of Conduct forInternational Election Observers. Additionally, international organizations check that their observers haveno stake in elections’ political outcome by recruitingonly noncitizens and nonresidents of the countrieswhere the elections are held.“Since 2002, OSCE has observed sixdifferent U.S. elections. OSCE goes to57 member states, using internationalstandards for democratic elections andchecking compliance with these standards.” Richard Lappin, OSCE Office for Democratic—Institutions and Human Rights (OSCE/ODIHR)Because international observers come from aroundthe world, they are often deployed in smaller numbersthan those of citizen observers. Some internationalobservation missions share information with domesticobserver organizations, as the efforts of both groupscan complement one another.The main goal of international election observation is to help foster genuine democratic electionsand promote respect for international human rights.International observers come to the United Statesduring general elections under the auspices of theOrganization for Security and Cooperation in Europe(OSCE), an intergovernmental organization. TheOSCE has observed multiple U.S. elections since2002. They issue public reports after every observation mission, assessing the democratic quality of elections in the United States. (For more information, seeNCSL’s webpage on international observers.)Academic ObserversAcademic observers typically must be grantedpermission by election administrators to providean impartial, thorough and constructive evaluation of the electoral process. As with nonpartisanobservers, this cooperation can be mutually beneficial.Academics are permitted to conduct research in theirA Guide to Election Observer Policies in the United Statesfields and administrators are guaranteed an observational presence that builds public trust in the fairness,honesty and effectiveness of an election. Academicobservers are granted observation access at the countylevel and often depend on good relationships withelection officials.Academic observers note that their observationsare not informed by pre-existing conceptions, positive or negative, of election administrators. Likenonpartisan observation, academic monitoring aimsto make impartial recommendations in a good faithunderstanding of the democratic commitments tobe upheld within election administration. In somecases, academics in the field report problems immediately to administrators to ensure the greatest level
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