The Iowa secretary of state threatened on Tuesday to arrest election observers from the Organization for Security and Cooperation in Europe if they come within 300 feet of polling places. Texas issued a similar warning last week. An OSCE official responded that the United States is obligated to invite observers to the election. Is it illegal for Iowa and Texas to bar international election monitors?
Sort of. OSCE members, including the United States, have agreed to “invite observers” from other OSCE countries to “observe the course of their national election proceedings, to the extent permitted by law.” At the same time, many states have statutes that forbid loitering, electioneering, or congregating within a certain radius of a polling place. Iowa and Texas have staked out a somewhat novel position this year, because state governments haven’t interpreted the activities of international election monitors as loitering or congregating in the past few elections. The polling place laws are intended to prevent voter intimidation and crowding—not legitimate observation by an intergovernmental body. Still, it’s highly unlikely the issue will come before a judge. The OSCE agreement isn’t legally binding, and its explicit accommodation for domestic laws appears to give state governments wide latitude. The federal government has also failed to issue legislation forcing states to comply with the OSCE agreement.
Even if the agreement were written more strictly, it’s not clear that the OSCE would have any legal recourse. States have gotten away with violating treaties in the past. In 2007, for example, the Supreme Court ruled that the Bush administration couldn’t stop the state of Texas from executing a Mexican national who hadn’t been notified of his right to speak to a consular officer, in violation of the Vienna Convention.
The dispute between Iowa and Texas and the OSCE is more a diplomatic controversy than a legal one. The United States often signs international agreements to encourage other countries to do the same, then either explicitly exempts itself from some aspects of the treaties or simply fails to comply with them. This practice becomes a major issue only when, as in this case, American noncompliance makes it into international media. Russia, which has a long history of constructively barring foreign election observers in violation of its OSCE obligations, has already accused the United States of hypocrisy over the situation in Iowa and Texas.
It’s not yet clear how the election observer controversy will be resolved. In an attempt to defuse the confrontation in Texas, an OSCE ambassador said on Friday that his election monitors don’t need to be inside of polling places to complete their work. This statement, although diplomatic, is puzzling. Election monitors check to make sure paper ballots are placed into boxes, that the boxes are sealed, and that voters’ names are being checked off of registration lists as they cast their votes. They also ensure that no form of intimidation is occurring inside the polling place. While observers may attempt to confirm these facts through voter interviews conducted several hundred feet from the polls, it’s certainly not how the process normally works.
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Explainer thanks Doug Chapin of the University of Minnesota, Judith Kelley of Duke University, author of Monitoring Democracy: When International Election Observation Works, and Why It Often Fails, and Richard Pildes of the NYU School of Law, an author of The Law of Democracy: Legal Structure of the Political Process.
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