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Center for Ethics and the Rule of Law

 


election security, foreign interference

• August 25, 2020

Protecting election integrity by prohibiting deception and disenfranchisement

by Chimène Keitner

 

This commentary is also posted on the web site of the Center for a New American Security (CNAS).

This is another commentary in a series developed by the 2020 Elections Project of the Center for a New American Security and the University of Pennsylvania’s Center for Ethics and the Rule of the Law and Annenberg Public Policy Center. The project culminates in a September 17, 2020, virtual symposium on foreign interference and election integrity. To read more about the symposium and register, go here.

The Declaration of Independence affirmed in the late 18th century that governments “deriv[e] their just powers from the consent of the governed.” In the mid-19th century, President Abraham Lincoln used his Gettysburg Address to urge Americans to protect government “of the people, by the people, for the people.” In the mid-20th century, the International Covenant on Civil and Political Rights (ICCPR), a binding multilateral treaty, stated in Article 1 that “[a]ll peoples have the right of self-determination,” and that “[b]y virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” These pronouncements, which still resonate in the 21st century, reflect the core propositions that government derives its legitimacy from popular consent and that peoples should determine their own political destinies. Although these ideals may be reflected imperfectly in the world’s nearly 200 countries, they remain important guideposts for the global political order.

Democracies continue to confront the challenge of ensuring that election results reflect the genuine will of the governed. In the United States and elsewhere, the perception (or reality) that prior foreign influence benefited an incumbent regime can complicate efforts to protect the integrity of future elections. The same is true of voter disenfranchisement, which incumbents might be tempted to deploy to gain perceived electoral advantage. Against the politically charged backdrop of the upcoming U.S. presidential election, this commentary proposes two interrelated tenets for election integrity derived from international law: anti-deception and anti-disenfranchisement. These two principles should guide policymaking to protect U.S. elections and help safeguard the legitimacy of their results.

Anti-Deception

A prohibition on deceptive attempts to influence foreign elections is rooted in the core international law principle of nonintervention in other countries’ domestic affairs. The United Nations Charter and the decolonization movement are both based on the idea that each state represents a self-determining people that has the right to be free from external control. Statehood entitles a political and territorial entity to protection from the threat or use of force by other states under Article 2(4) of the U.N. Charter, as well as under customary international law. Article 1(2) of the Charter enshrines “the principle of equal rights and self-determination of peoples” as the cornerstone of “friendly relations among nations.” Article 2(7) further specifies that the Charter does not authorize the United Nations “to intervene in matters which are essentially within the domestic jurisdiction of any state.” In 1965, the U.N. General Assembly adopted Resolution 2131 on the “inadmissibility of intervention in the domestic affairs of states.” The resolution urges “full observance of the principle of the non-intervention of States in the internal and external affairs of other States,” and indicates that “direct intervention, subversion and all forms of indirect intervention … constitute a violation” of the U.N. Charter.

The principles of sovereignty, territorial integrity, political independence, self-determination, and nonintervention reflect core understandings about the attributes and entitlements of states in the international system. Yet protecting a people’s right to choose its political system pulls in potentially contradictory directions. On the one hand, the idea of self-determination does not explicitly preclude choosing autocratic or even dictatorial forms of government. On the other hand, the emphasis on choice suggests a right to democratic forms of government so that the population can formulate and express its will at regular intervals and hold political leaders accountable for their conduct in office.

The United States has long promoted democratic governance in other countries. As the U.S. Agency for International Development states on its website:

The most fundamental principle defining credible elections is that they must reflect the free expression of the will of the people.

To achieve this, elections should be transparent, inclusive, and accountable, and there must be equitable opportunities to compete in the elections. These broad principles are buttressed by several electoral process-related obligations, as well as a number of key rights and freedoms, each of which derive[s] from public international law.

Some might argue that promoting democratic governance in other countries itself amounts to prohibited intervention in the internal affairs of other states. However, providing support for more fair and transparent political processes—as opposed to supporting a particular candidate—is consistent with respect for self-determination.

When it comes to foreign policy, it can be difficult to draw the line in international law between lawful attempts to persuade voters in other countries to support a particular policy and unlawful interference in another country’s democratic decision making. For example, the mission of U.S. public diplomacy is defined as “support[ing] the achievement of U.S. foreign policy goals and objectives, advance[ing] national interests, and enhanc[ing] national security by informing and influencing foreign publics… .” Overt attempts to sway foreign public opinion on matters of mutual interest such as defense cooperation or trade policy are part and parcel of traditional diplomatic outreach. By contrast, as State Department Legal Adviser Brian Egan made clear in a 2016 speech, “a cyber operation by a State that interferes with another country’s ability to hold an election or that manipulates another country’s election results would be a clear violation of the rule of non-intervention.”

Professor Nicholas Tsagourias takes the position that “disinformation or ‘hack and leak’ operations” are also internationally unlawful, because such activity “substitutes the authentic process of self-determination with an artificially constructed process in order to generate particular attitudes and results aligned to the intervenor’s will.” In the cyber context, he draws the line between lawful attempts at persuasion, on the one hand, and unlawful intervention, on the other, based on whether the operation is designed to “exert control over a sovereign matter … through subterfuge” that affects the confidentiality, integrity, or availability of information. This is consistent with advocating a binding anti-deception rule.

In concrete terms, an anti-deception norm would prohibit Russia, for example, from creating fictitious U.S. personas on social media platforms to amplify and disseminate messages about divisive U.S. political and social issues in an effort to influence a U.S. election. The enforcement of this prohibition would be bolstered by requiring presidential campaigns to report all contacts with foreign nationals seeking to interfere in the election process to both the FBI and the Federal Election Commission—a proposal that has, however, been opposed by President Donald Trump and blocked by Senate Republicans.

Ensuring election integrity requires adopting an anti-deception norm in both domestic and international law, in addition to the prohibition on actual manipulation of results or distortion of the voting process. The potential difficulty in implementing this principle should not detract from its importance as a prerequisite for the free and fair formation—as well as expression—of the electorate’s views at the ballot box.

Anti-Disenfranchisement

The anti-disenfranchisement imperative flows from both international human rights law and domestic constitutional law. The ICCPR guarantees equal protection and prohibits discrimination on any ground (Article 26), and protects the rights of minority groups within multicultural states (Article 27). The 14th Amendment to the U.S. Constitution likewise guarantees the equal protection of the laws to “any person” within the jurisdiction of a U.S. state, as well as protection from denials of equal protection by the federal government.

The ICCPR provides that “[e]very citizen shall have the right and opportunity,” without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and “without unreasonable restrictions,” to vote and to be elected at “genuine periodic elections” (Article 25). Yet the effectiveness of the Voting Rights Act of 1965—the key legislative guarantee of equal voting rights in the United States—was severely curtailed in 2013 by the U.S. Supreme Court’s decision in Shelby County v. Holder. The House of Representatives passed the Voting Rights Advancement Act of 2019 to restore the act’s effectiveness, but the bill remains stalled in the Senate, along with multiple bills that would strengthen election security.

Election integrity requires the broadest possible participation by those entitled to vote. Anti-fraud measures that create unreasonable restrictions should not be countenanced. Voters should not be required to take unpaid time off work to participate in democratic governance, and there should be ample polling places, as well as safe alternatives to voting in person. In addition, anti-disenfranchisement and anti-deception norms prohibit creating or spreading false or misleading information about voting locations and procedures.

Implementing the dual prohibitions on disenfranchisement and deception would go a long way toward protecting the integrity of elections. It would also bolster the legitimacy of authority exercised by elected and appointed officials in the name of “We the People.”

Chimène Keitner is the Alfred and Hanna Fromm Professor of International Law at UC Hastings Law School in San Francisco. She is a leading authority on international law and civil litigation and served as the 27th Counselor on International Law in the U.S. Department of State.