Elections and Transparency2013-12-01
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Elections in the United States
If democracy is a painting created by its own audience, democracy without transparency is that audience blindfolded — trusting and hoping and not really knowing if they are having democracy at all.
Elections are the public act through which you assemble your democratic governance, and elections are only public when you and everyone else can fully participate. Full participation means you can choose to run for office, openly campaign, vote, and exercise oversight. Without public oversight you can participate in only the first few elements; it is elections in the dark, controlled by someone else, hopeful thinking rather than true participatory governance.
Public oversight starts with transparency. Election transparency is the public ability to see and verify each essential step in elections, the essential steps being: (1) who can vote (voter list), (2) who did vote (poll list, or participating voter list), (3) counting of the vote, and (4) chain of custody. These four items are the key to public accountability in elections.
Election transparency is not a slogan, not a radical agenda, not someone’s opinion, not naivete and it’s not just for experts and academics. Transparency is solidly grounded in human rights.1
ELECTION TRANSPARENCY RIGHTS
Underlying human rights:– Public sovereignty over government (the people own the government); – Right to freedom of communication (free speech and freedom of the press);
– Right to freedom of information (We paid for it, we own the government, it belongs to us).
Transparency rights for elections:– Right to transparent election accounting (who can vote; who did vote; public counting of the vote; transparent chain of custody);
– Right to financial accountability (public disclosure of political finance).
WHY ELECTIONS? WHY TRANSPARENCY?
Electoral democracies strengthen public vigilance and government accountability to its people. Money and power concentrate control; elections and transparency return a portion of that control to the public.
In the streets and in the elite, international expectations have been converging towards transparency.2
The right to know is demanded with dogged persistence by a public refusing subservience to its own government and, at least conceptually and in the abstract, transparency rights are conceded by the elite for stability’s sake (“creates a more attractive business environment”); in any case it is no longer considered proper for the government to tell us its activities are none of our business. Transparency’s “costs,” its “inconvenience,” and its general disruptiveness still cause quarrels but most agree that the old ship of simple autocracy has sailed. At least 70 nations have now implemented freedom of information laws,3 and not only are demands for transparency increasing, but the means to share information have been exploding through Internet technology.4
All these concepts apply to election transparency. Transparency is for the public — that is, any person — not just for officials.5
BACKGROUND: FREEDOM OF INFORMATION RIGHTS
Freedom of speech
It should come as no surprise that freedom of speech is accompanied by people gabbing while having no idea what they’re talking about. But what if we can’t know what we’re talking about? Blocking information that provides the factual underpinning on which we (hopefully) base our speech is a way to block free speech itself. Freedom of information provides the underpinning for free speech,6 which forms the foundation for freedom of the press; in this light, freedom of the press can be seen as simply a reduction of the larger public right to know which applies to government information, political finance, and the right to see and authenticate the election process itself.
Government is the servant of the people
Once one understands that All Things Government are paid for with either our money (in the form of taxes) or by putting IOU’s on our money through debt, or through debt obligations on our children, it should be clear that we have every right to see what we bought with our money. In short: We already own the information generated by the government.7 Our taxes and our debt obligations paid for every phone call, every page in the budget, the paper on which information is printed and the computers and software that store the data. We paid for the ballots, lists, machines, counters, warehouse, and salaries of any persons telling us we have no right to look.
Freedom of information derives from more than just the right to free speech; it connects directly to concepts like taxation without representation. Taxation without representation is theft (because it confiscates personal property without legitimate authority); some say it is a form of extortion, or even slavery. These ideas may sound a bit bellicose but are not inaccurate if professional insiders can arrange for their own selection, make self-profiting policy, and use our money to pay for it.
Typical preamble for Freedom of Information law:
“Government is the servant of the people and not the master of them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. We insist on remaining informed so that we may retain control over the instruments of government we have created.”8
Can’t give away rights of others
No person or group has the right to give away the rights of others. Even if a set of persons agree among themselves that they would like to pass a rule removing the inalienable rights of others, such a rule (or law) is inherently invalid,9 lacks moral authority, and comes with a duty to resist.
Right to know applies to private corporations acting on behalf of the state
When private corporations run elections they are acting under government authority, in essence, acting as agents of the state. Freedom of information applies to processes performed by private entities when they are assigned by the state to carry out public functions on its behalf, paid for out of public funds.10
Public right to truthful disclosure
The government can’t be sole verifier of its own information, especially when it comes to the choosing of itself. The public right to ascertain that their government is telling the truth about election results is the last, best (peaceful) resistance against illegitimate governance.11
- For one of many examples of elections as a human right, see: Universal Declaration of Human Rights, which states in Article 21: “(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives; (2) Everyone has the right of equal access to public service in his country; (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” http://www.un.org/en/documents/udhr/
For one of many quotes describing freedom of information as a human right, see: Klosek, Jacqueline, The Right to Know, Santa Barbara, California: Praeger: 2009 ISBN 978-0-313-35927-9, wherein the author states: “Around the world, freedom of information is increasingly recognized as a fundamental human right…No democratic government can now seriously seek to deny members of the public the right to freedom of information.” ↩
- International expectations have been converging towards transparency – For an extensive treatment of the international movement towards transparency, see: Vogl, Frank, Waging War on Corruption; Inside the Movement Fighting the Abuse of Power. USA/UK: Rowman & Littlefield: 2012 ISBN 978-1-4422-1852-9; Vogl describes a combination of forces converging to improve transparency: “A robust set of civil society organizations operating nationally and internationally …; A complex of national and international anticorruption laws and conventions, backed by world leaders…; The rapid development of new information and media technologies…; Rising support from philanthropic foundations, plus formidable increases in academic research…”
And in: Klosek, The Right to Know: “A new trend towards information freedom is rapidly emerging in the international community, and laws recently enacted across the globe are breathing new life into the concept of information access. The U.S. Freedom of Information Act (FOIA) is now more than 40 years old, but many of the laws enacted in other countries have been passed within the last decade or so. Many of these new laws take a fresh and modern approach to information freedom.”. ↩
- At least 70 nations have now implemented freedom of information laws – Klosek, The Right to Know, Chapter 1. ↩
- Transparency exploding through Internet technology – See: Newsom, Gavin; Dickey, Lisa, Citizenville: How to Take the Town Square Digital and Reinvent Government. New York, US: Penguin Group US: 2013 ISBN 978-1-101-60581-3 for extensive information on how internet technology can empower transparency in government; Newsom’s book is inspiring in general, but his section on Internet voting lacks insight into how it reduces transparent accountability in elections;
See also Reynolds, Glenn: An Army of Davids: How Markets and Technology Empower Ordinary People to Beat Big Media, Big Government, and Other Goliaths. US: Thomas Nelson Inc: 2006 ISBN 1-59555-054-2; From the introduction: “Goliath rules. These had always been the truisms of history — that might makes right and power rests with those who are big enough to defend it … until the digital age came along … Like David’s sling, these new technologies empower the little guy to compete more effectively. … In the future, the efforts of individuals and small groups, acting sometimes on their own and sometimes in informal cooperation with others, are likely to make a bigger difference than they’ve made in centuries.” ↩
- Transparency is for any person, not just for officials – See the language in, for example, the Nov. 13, 1985 Advisory Opinion of the Inter-American Court of Human Rights, interpreting Article 13, titled “Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism“, 30, Advisory Opinion OC-5/85 (November 13, 1985). The Opinion recognizes freedom of information as a fundamental human right, stating: “It is a right that belongs to each individual,” and “For the average citizen it is just as important to know.”
Typically, freedom of information law uses the term “any person,” though some locations limit this to “any citizen” living in the jurisdiction where statutes apply. Regarding “any person” vs. experts as journalists for mainstream media, see Gant, Scott: We’re All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age. New York, US: Free Press 2007 ISBN 1-4165-4594-8. Gant writes: “The power of public scrutiny in our society cannot be underestimated … Bloggers and other nontraditional journalists are arguably much more in line with the legacy of Revolutionary-era pamphleteers than today’s mainstream journalists, most of whom work at for-profit media giants, and often have a symbiotic relationship with the government officials they cover…. through the Internet anyone can become a town crier or a pamphleteer.” ↩
- That freedom of information provides the underpinning for free speech – see Klosek, The Right to Know; in Chapter 1, Klosek writes: “The primary human right and constitutional source of the right to freedom of information is the fundamental right to freedom of expression, which includes the right to seek, receive, and impart information and ideas.” That freedom of expression is not just essential to a working democracy, but a duty of responsible citizenship, is expressed by US Supreme Court Justice Louis Brandeis in his concurring opinion to the landmark free speech case, Whitney v. California, 274 U.S. 357 (1927); Justice Brandeis writes: “Those who won our independence believed that the final end of the state was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary … that public discussion is a political duty; and that this should be a fundamental principle of the American government.” ↩
- We already own the information generated by the government – See Klosek, The Right to Know. Writing about a consensus of authoritative statements and interpretations by a number of international bodies, Klosek writes: “The right to freedom of information refers primarily to the right to access information held by a wide range of governmental agencies. It reflects the principle that public bodies do not hold information on their own behalf, but rather for the benefit of all members of the public.” ↩
- Preamble examples: West Virginia – “Pursuant to the fundamental philosophy of the American constitutional form of representative government which holds to the principle that government is the servant of the people, and not the master of them, it is hereby declared to be the public policy of the state of West Virginia that all persons are, unless otherwise expressly provided by law, entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments of government they have created. To that end, the provisions of this article shall be liberally construed with the view of carrying out the above declaration of public policy; New York – “The people’s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality. The legislature therefore declares that government is the public’s business …” ↩
- Can’t give away rights of others – for example, see Hall, Thad E. and Wang, Tova Andrea, International Principles for Election Integrity, in Alvarez, R. Michael; Hall, Thad E.; and Hyde, Susan D. (eds.), Election Fraud: Detecting and Deterring Electoral Manipulation. Washington D.C., US: Brookings Institution Press: 2008 ISBN 978-0-8157-0138-5. “Although a specific electoral requirement may be established in law, it may still violate a principle associated with the appropriate democratic conduct of elections. For example, the poll taxes and all-white primaries that existed in the South, and the literacy test requirements that were in place in New York before the passage of the Voting Rights Act of 1965, were legally established voting requirements that were also discriminatory according to international principles.” In the preceding examples, legislators attempted to dispense with voting rights for certain populations, but such laws breached fundamental rights, and had to be abandoned. ↩
- Laws apply to private entities performing functions on behalf of the state – for example, Sections 241 and 242 of the US Code, which make it unlawful to intentionally deprive anyone of rights guaranteed by the Constitution or federal law typically require action by an individual or entity representing the state before enforcement steps in, but “This state action requirement can be met not only by the participation of poll officials, but also by activities of persons who clothe themselves with the appearance of state authority…This element does not require that the defendant be a de jure officer or a government official; it is sufficient if he or she jointly acted with state agents in committing the offense, or if his or her actions were made possible by the fact that they were clothed with the authority of state law,” writes Craig Donsanto, Director, Election Crimes Branch at US Department of Justice, in Corruption of the Election Process under US Federal Law, in Alvarez, Hall and Hyde’s book: Election Fraud. In Klosek, The Right to Know, the author mentions that “the newer laws of some countries include even private companies;” This is true for state statutes, and court interpretations of state statutes, in several US states. ↩
- Public right to truthful disclosure – See Klosek, The Right to Know: “However, the right to freedom of information goes beyond the passive right to access documents upon request … another important aspect of the right to freedom of information is starting to emerge, namely the right to truth.” ↩