Letter from Dublin

[Editor’s Note: Donald Trump is in the middle of pulling what may be his last con on the United States as its president — but don’t give up on him, he’s still got till 20 January and he’s as cranky as a baby with colic (some people believe he actually is a baby with colic — a rather large, elderly one).

People from around the world have written to me to say how alarmed they are at the big baby’s tantrum, as well they should be when a big baby thumb rests on the nuclear button. One of them is the author of this piece, Thamil Venthan Ananthavinayagan. Dr. Ananthavinayagan is a lecturer in international law, international humanitarian law and international criminal law at Griffith College Dublin. He is also an advocate for human rights, and author of the recent book “Sri Lanka, Human Rights and the United Nations: A Scrutiny into the International Human Rights Engagement with a Third World State.”

Nearly needless to say, he looks aghast at the recent unpleasantness we called the U.S. election.]

All Votes Matter — An International Legal Reflection Upon the US Presidential Elections

I.

It was Martin Luther King, Jr., who delivered a landmark speech in 1957 and said:

Give us the ballot, and we will no longer have to worry the federal government about our basic rights. Give us the ballot, and we will no longer plead to the federal government for passage of an anti-lynching law. … Give us the ballot, and we will fill our legislative halls with men of goodwill. … Give us the ballot, and we will place judges on the benches of the South who will do justly and love mercy. … Give us the ballot, and we will quietly and nonviolently, without rancor or bitterness, implement the Supreme Court’s decision of May seventeenth, 1954.

Voting rights are the cornerstone in the exercise of democracy, rights that were hard-fought for by the civil rights leaders such as Martin Luther King, Jr., to be extended also to the African American community in the United States. However, as we speak and while you read this, the sitting President of the United States and his campaign team are alleging election fraud, without any substantial backup and without any evidence of the claims made. The sitting president said in his first address — while the votes were still (and are) being counted — the following: “This is a fraud on the American public. This is an embarrassment to our country. We were getting ready to win this election. Frankly, we did win this election.” Allegations of late ballots, new ballots, and illegal votes are made by the Trump campaign. The sitting president has tweeted and perplexed election experts some months ago by tweeting that mail-in votes are fraud, whereas absentee voting is legitimate. Matter of the fact is: both are the same, only called differently by the US states. Lawsuits are being launched in the US states of Michigan, Pennsylvania, and Georgia by the legal team of the Trump campaign. The Trump campaign and the sitting president himself are emotionally stirring up the atmosphere, while his supporters attempt to enter the counting centres armed with rifles.

This article will contextualise, against the background of the dynamic developments in the United States, first, the importance of the right to vote (including postal ballots for this purpose) as it is enshrined under international law. Second, this article will contextualise the right to vote in the domestic legal system of the United States.

II.

At the international legal level, voting rights are detailed in the Universal Declaration of Human Rights, as it is stated in Art. 21: “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.” A similar provision is found in Art. 25 of the International Covenant for Civil and Political Rights. Against this background, the United Nations Human Rights Committee stipulates with its General Comment No. 25:

10. The right to vote at elections and referenda must be established by law and may be subject only to reasonable restrictions, such as setting a minimum age limit for the right to vote. It is unreasonable to restrict the right to vote on the ground of physical disability or to impose literacy, educational or property requirements. Party membership should not be a condition of eligibility to vote, nor a ground of disqualification.

11. States must take effective measures to ensure that all persons entitled to vote are able to exercise that right. Where registration of voters is required, it should be facilitated and obstacles to such registration should not be imposed. If residence requirements apply to registration, they must be reasonable, and should not be imposed in such a way as to exclude the homeless from the right to vote. Any abusive interference with registration or voting as well as intimidation or coercion of voters should be prohibited by penal laws and those laws should be strictly enforced. Voter education and registration campaigns are necessary to ensure the effective exercise of article 25 rights by an informed community.

Considering this valuable General Comment with regards to the USA, this is in line with respective domestic laws. Postal voting “is an increasingly common form of absentee enfranchisement. Many countries (including Canada, the U.K., and the United States) even allow postal voting for non-absentee populations who simply prefer the convenience.” But it goes beyond this aspect of convenience: in times of the pandemic, postal voting has led to a global increase of the use of such, wedding the right to vote with the right to health and right to life (as stipulated in Art. 6 in the ICCPR and Art. 12 in the ICESCR). The postal vote democratises and extends a democratic infrastructure to marginalised and vulnerable populations in line with Art. 25 of the ICCPR, while embedding it within a global health precaution. The sitting president’s unsubstantiated claims of fraud are merely a reflection of his lack of respect for global health and electoral democracy.

Against this backdrop, in Sitaropoulos and Giakoumopoulos v. Greece, the European Court of Human Rights had also enunciated the normative content of Art. 25 of the International Covenant of Civil and Political Rights which have their validity and enforcement in domestic law in the United States, which will be contextualised in the following.

III.

The Voting Rights Act enforces the 14th and 15th Amendments to the U.S. Constitution. It specifically outlaws the barriers previously imposed by some states to stop African Americans from voting. In Section 13 (c) (1) of the Voting Rights Act it is enunciated that:

The terms “vote” or “voting” shall include all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this Act, or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election.

On this token, the Brennan Center for Justice had stated in 2017 already that the rate of voting fraud overall in the US is less than 0.0009%. It is projected that ‘approximately 80 million Americans are projected to vote by mail in the 2020 general election — double the number who voted by mail in the 2016 election.’ In fact, postal voting ‘may prove to be a suitable option to keep electoral systems working and functional, even if we take the limitations postal voting involves into account’, enhancing democracy and effectuating the Voting Rights Act as outlined above. Also the Centers for Disease Control and Prevention has stressed the need to enable mail-in voting in order to ensure public health while allowing democracy through elections to flourish.

The marginalised communities were already disproportionately affected by the Covid-19 pandemic and according to recent poll by Wall Street Journal and NBC poll, ‘just 11% of Trump supporters said they planned to vote by mail, compared with 47% of supporters of Democratic nominee Joe Biden.’ The Voting Rights Act and the international legal regime are safeguarding, first, the right to vote, but moreover the postal voting are effectuating this very right to vote, while ensuring the right to health in the age of the pandemic. Questioning this is refuting the participation in democracy, disregarding public health and propounding an elitist interpretation of the right to vote.

IV.

Donald Trump does what he does best when his position of privilege is threatened: he launches lawsuits. He did so in his life as an heir to a corrupted business empire and in his life as a political populist. W.E.B. Dubois said once that: ‘A system cannot fail those it was never intended to protect.’ This presidential election has seen the highest voter turnout since 1908. It is not crucial, but essential that the most marginalised and the vulnerable regain faith in the political system by holding those accountable who have failed them. If not, this system was always engineered to protect and allow white hegemony to thrive.