The following principles are based on international human rights law, which offers valuable standards for protecting fundamental human rights during elections. Relevant law can be found in the International Covenant on Civil and Political Rights (articles 2, 6, 9, 21, 22, 25), ratified by the United States in 1992; the International Convention on the Elimination of All Forms of Racial Discrimination (articles 1, 4, 5), ratified by the United States in 1994; and the Universal Declaration of Human Rights (articles 20, 21), which is considered reflective of customary international law. Many of these provisions are reflected in US constitutional, federal, and state law.
- Ensure that all eligible voters are able to exercise their right to vote, by effectively communicating about voting procedures, making various voting options readily available and accessible, and adopting additional measures as needed.
Election officials in the United States should counter any misinformation about polling procedures or locations promptly, consistently, accurately, and using languages and methods of communication designed to reach all eligible voters. Officials should offer a range of in-person and other voting options that would ensure that all eligible voters are able to exercise their right to vote. This includes anticipating the possibility of address changes, especially given evictions and housing transitions due to the economic and societal impact of the Covid-19 pandemic. It includes anticipating problems people may have voting if they do not have time off from work, lack dependent care due to Covid-19-related school and daycare closures, or have no access to safe or affordable transport. It also includes measures to ensure voting access to people with disabilities, older people, those ill with Covid-19 or otherwise limited in their mobility (including due to caregiving responsibilities), or others having difficulty complying with new public health measures applicable to voting.
- Ensure the right to vote without discrimination or discriminatory effects.
Given the long US history of discrimination against Black and brown people in their ability to exercise the right to vote, authorities throughout the United States should ensure that voting procedures do not have discriminatory effects, particularly on racial and ethnic minorities, Native Americans, and people with disabilities, among others. Authorities should end the disenfranchisement of people who have completed criminal sentences, ensure voting rights in jails, and review all automatic felony disenfranchisement laws, which have had a disproportionate impact on Black and brown people. Voting rights should be restored and respected for people under probation or parole supervision, or who may owe fines and fees.
- Protect the right to health while voting and during election-related activities.
Election officials in the US should ensure safe access to voting in the context of the Covid-19 pandemic. This includes adopting a range of measures, such as mail-in voting, secure drop boxes, multi-day early voting, increased numbers of polling places to decrease crowding, social distancing rules, special assistance to people at risk of illness or who have been quarantined, and protocols ensuring access to hygiene materials and freely available personal protective equipment at polling places. Candidates should act to ensure that campaign activities do not imperil public health.
- Provide prompt review, appeal, and remedy for voting rights violations.
International law requires an effective remedy—a solution or “cure”—for violation of an individual’s human rights, including voting rights violations. Voters who report that their rights have been denied or violated should have a prompt, fair hearing and appeal, and the right to a speedy and effective solution. Such review should ensure voters the opportunity to correct routine issues like forgetting to sign their ballot envelope or using a different signature style than the one on record. An effective solution would allow voters to exercise their voting rights within the election timeframe so that their vote can be counted.
- Allow unfettered monitoring by impartial, non-partisan election observers.
Each US state has its own rules governing the use of election observers. Only 35 US states have laws explicitly allowing and regulating the use of non-partisan election observers. However, impartial, non-partisan observers are useful in ensuring that elections are free and fair. Such observers can add to the credibility of elections by recognizing and highlighting procedures and practices that help protect the right to vote, as well as identifying problems.
- Keep the right to vote and the “will of the people” at the center of ballot counting.
US citizens have the right to vote for candidates of their choice and to have that vote counted. Similarly, international human rights law recognizes that government derives its authority from the “will of the people.” An increase in the number of people voting by mail and other changes made to voting procedures in light of the Covid-19 pandemic means it may take longer than in previous elections for local election officials in the over 10,000 US election jurisdictions to generate accurate tallies of results. Officials at all levels should ensure that all valid ballots be counted, keeping the rights of voters and ascertaining the will of all voters at the center of efforts to resolve any controversy.
Elections should occur within an established legal framework that is conducive to free and fair elections. In general, laws governing the elections should not be changed immediately prior to or in the midst of elections or vote counting; any legal adjustments that may be required due to unforeseen events should prioritize ensuring the effective exercise of voting rights and the counting of all votes.
- Prevent voter intimidation and violence by extremist and other groups before, during, and after the elections.
Officials at all levels and candidates for office should publicly condemn groups and individuals seeking to intimidate, harass, or incite violence against voters and other members of the public, including on the basis of race, color, national origin, gender, gender identity, sexual orientation, religion, and disability. They should seek to prevent such intimidation and violence, including near polling places and during protests. Law enforcement authorities should promptly and thoroughly investigate and appropriately prosecute violence against candidates, elected officials, voters, election officials, and others.
Federal and state authorities should immediately investigate and address credible allegations or evidence of collusion by local law enforcement officials, police, or members of the armed forces, including the National Guard, with white supremacist and other extremist groups. Implicated individuals should be put on leave pending appropriate disciplinary measures or prosecution.
Government agencies and officials as well as others who effectively wield governmental authority or exercise effective control over territory and population have a duty not to engage in any speech advocating violence, discrimination, or hostility toward any individual or social group.
- Ensure access to accurate electoral information; act to prevent or mitigate rights abuses.
Government officials should not make, sponsor, encourage, or further disseminate information about the electoral process which they know to be false, or which demonstrates a reckless disregard for verifiable information. They should disseminate reliable and trustworthy information about the electoral process.
Internet intermediaries, like social media platforms, have a responsibility to respect human rights and mitigate harm—such as incitement to violence—resulting from their business practices. Where they take action to restrict third-party content (such as deletion or moderation) that goes beyond legal requirements in order to, for example, preserve the integrity of the electoral process, they should adopt clear, pre-determined policies governing those actions. Those policies should be based on objectively justifiable criteria that can be both easily accessed and understood, with clear information about how they are enforced. Intermediaries should respect minimum due process guarantees and give users access to remedies.
- Ensure the right of peaceful assembly.
Authorities at all levels in the United States are obligated under international law to protect the right of peaceful assembly, including by adopting measures to enable such assemblies. Authorities should presume all assemblies to be non-violent, even in cases where there are isolated incidents of violence, or where external actors—such as counter-protesters—engage in violence. They should only restrict such assemblies to the extent that restrictions are necessary and proportionate, and are the least intrusive measures necessary, to achieve a legitimate goal, such as protecting the rights of others or public order.
- Minimize Arrests and Use of Force in Responding to Protests
Law enforcement should avoid the use of force to disperse protests, regardless of whether they deem the protests unlawful.
Even in the event of violence, law enforcement, including armed forces acting in a law-enforcement capacity should adhere to the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, using force only when strictly necessary and proportionate to respond to a genuine threat, and only when other, less harmful measures have proven to be or are clearly ineffective to address the threat. Law enforcement authorities should also ensure that officers are trained in the UN Guidance on Less-Lethal Weapons in Law Enforcement with the aim of preventing the unnecessary or improper use of weapons such as tear gas, rubber bullets, water cannons, and batons in ways that cause injury including death.
If arrests are necessary, police should issue summonses on the street instead of bringing people to jail. Because of the heightened risk of Covid-19 for detainees and jail staff, authorities should refrain from custodial arrests for misdemeanors and low-level felony offenses that do not involve the infliction or threat of infliction of serious bodily injury or a known likelihood of physical harm.
Authorities should ensure that guidelines and regulations on crowd control and the use of force conform to international standards and are clearly communicated to law enforcement prior to protests, with the message that officials will pursue appropriate disciplinary measures and criminal prosecutions against law enforcement officials who commit violations.
The federal government and other authorities should not deploy the National Guard or other agencies to respond to protests if their members do not have significant training in crowd control and minimizing the use of force. They should also not deploy agencies, such as Customs and Border Protection, that have records of engaging in human rights abuses.