Posted on 07/06/2005 7:13:38 PM PDT by Leo Carpathian
"PROTECTING THE VOTE: JUDICIAL SUPERVISION OF THE ELECTORAL PROCESS - THE UNITED STATES PERSPECTIVE"
With comments on the 2004 presidential election in Ukraine
Comments by Judge Bohdan A. Futey (1) 13th Annual International Judicial Conference Kyiv, Ukraine, May 25-27, 2005
It is an honor and privilege to participate in this extremely important conference dealing with election dispute resolution, judicial authority and independence. My comments will concentrate on the experience of my own country, the United States of America, its Constitution and statutes, the electoral process, and the adjudication of election disputes by its courts. I would like to comment on actual cases decided by our courts and, where pertinent, reference Ukrainian statutory and case law.
In the aftermath of the Orange revolution, the recent transition of power in Ukraine has brought with it a much needed emphasis on political and economic reform. While these areas certainly warrant attention, it is imperative that legal and judicial reform receive the same level of scrutiny, particularly in the area of adjudication of election disputes.
The importance of resolving electoral issues stems from the fact that the right to vote in a democratic society is one of the most precious of all individual rights.
The United States Supreme Court has endorsed this proposition: "No right is more precious in a free country than that of having a choice in the election of those who make the laws under which as good citizens they must live." (2) Voters' trust and confidence are of great significance.
If citizens cannot be assured of a fair and honest election process, they will have no faith in other components of the political process. Social stability rests on the individual's confidence in the electoral process to function correctly in every respect. It is the responsibility of the judiciary to ensure that the adjudication process is implemented in a proper way.
This proposition, however, begs the question: How exactly does the judiciary accomplish this end without overstepping its boundary, i.e., without usurping the "will of the people" or the authority entrusted to the other branches of government?
Authority for contesting elections and recounts at the federal level is provided by the Constitution and the Federal Contested Elections Act of 1969 (Act). A contested election is a formal charge that the declared winner of the election is not entitled to be the winner. Contests have been filed based upon allegations of irregularities or fraud in the election and seek to set aside results of elections. A recount involves a challenge to the validity of a vote count. In a recount, the challenger requests a second count of all or part of an election based on allegations that errors or mismanagement took place in the counting of ballots.
Article I, section 5, clause 1 of the Constitution provides that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." Thus, each House is not only "Judge" but also the final arbiter, and its decisions are not reviewable in any court. The Supreme Court has consistently held that the question of title to a seat in Congress is "a non-justiciable" question.3
The Act provides the mechanism for challenging House elections. For example, the Act requires: (1) a contestant to file a notice of intention to contest the election; (2) the contestant to serve the notice upon the contestee; and (3) the contestee to file an answer upon the contestant. The Act also permits the contestee to raise a number of defenses to the notice of contest, such as lack of standing of the contestant or failure of the notice to state grounds sufficient to change the result of the election. The Act further permits the contestant and contestee to conduct discovery and provides the power to subpoena witnesses.
Once received by the House, election contests are referred to the House Administration Committee, which hears and investigates challenges. The Committee then reports their findings to the House which has established basic standards to evaluate the validity of contests. For example, a contestant must demonstrate that the allegations, if true, would alter the result of the election. (4) These allegations must be supported with adequate evidence. (5) In addition, the fact that an election count was close, in and of itself, is an insufficient ground upon which to overturn the results. (6)
States have the power, however, to enact mechanisms for contests and recounts.7 Although most laws governing elections of Representatives in Congress are state laws, the courts of a State have no direct power to judge the elections, returns and qualifications of House members. Where the highest court of a State has interpreted the state law, however, the House has concluded that it should generally be guided by this interpretation, but does not consider itself bound by such interpretation. (8)
Next, before examining instances where the court has assumed jurisdiction, it is equally important to recognize instances where the judiciary should refrain from rendering a decision. The areas of foreign policy, the operation of the military establishment and, most importantly for our purposes, political questions, are insulated from oversight by the judiciary. (9) The political question doctrine is a delicate subject area. On the one hand, courts interpret the Constitution to ascertain basic standards and undertake to decide certain questions if political branches are in disagreement. On the other hand, courts have avoided adjudication of issues considered to be political questions.
An example of a court exercising jurisdiction is illustrated in Powell v. McCormack.(10) In Powell, the House of Representative (House) refused to admit a reelected member based on his conduct and character. The Court examined whether the Constitution gave the legislature the power to make such a decision.
The Court indicated that the legislature had the power to consider a member's age, citizenship, and residency. The Constitution, however, did not grant the legislature the power to consider a member's conduct and character. The Court concluded that the political question doctrine did not bar judicial review over the legislature's action.
Powell's continuing validity was affirmed in U.S. Term Limits, Inc. v. Thornton,(11) by the Court in its holding that the qualifications set out in the Constitution are exclusive and may not be added to by either Congress or the States. An amendment to the Arkansas Constitution denying ballot access to congressional candidates who have already served three terms in the House or two terms in the Senate was invalid as conflicting with the qualifications for office set forth in Article I of the Constitution, specifying age, duration of U.S. citizenship, and state inhabitancy requirements.
Conversely, federal courts have held disputes arising from congressional ballot-counting and seating of candidates as non-justiciable. In 1984, McIntyre v. McCloskey (12) involved the closest election in the history of the House of Representatives. On election night, a count showed McCloskey the winner by seventy-two votes. After a correction of the returns from one county, the count showed McIntyre ahead by thirty-four votes.
As a result, both candidates sought a ballot recount in fifteen counties under state law procedures. Pursuant to Indiana law, state courts appointed commissioners to supervise and report ballot recounts, as well as instruct them on how to resolve certain disputes.
Meanwhile, the House determined it would not seat either candidate and directed the Committee on House Administration to investigate.
McCloskey removed the proceedings to federal court, asserting that federal law occupied the field so that only federal principles could be used to determine which ballots to count in a federal election. The federal district court agreed and ultimately dismissed the proceeding.
Between the time of the district court's decision and McIntyre's appeal, the House recounted the votes and seated McCloskey. The House determined that McCloskey won by four votes. On appeal from the district court's decision, the United States Court of Appeals for the Seventh Circuit determined that, pursuant to Article 1, Section 5, Clause 1 of the Constitution, the House was the final judge and arbiter of this dispute, and its decisions concerning which ballots to count and which candidate won was not reviewable in any court.
In 1998, the Constitutional Court of Ukraine likewise recognized the political question doctrine's viability. In "Re Law on Election of Deputies to the Verkhovna Rada of Ukraine," the Constitutional Court in considering the law on election of deputies declined to review the constitutionality of the provision requiring the political parties and electoral blocs to receive a minimum of four percent of the popular vote in order to be elected to the Parliament. Specifically, the court reasoned that the issue presented a political question which belonged to the jurisdiction of the Parliament itself, and not the court. (13)
This is not to say, however, that election disputes are categorically immune from judicial review. When election disputes are properly presented to a tribunal for resolution, American jurisprudence has developed an exacting standard of proof, one which takes into account the practical reality that elections are not flawless, but nevertheless recognizes that redress may in appropriate circumstances be necessary.
The standard was succinctly articulated by the United States Court of Appeals for the Third Circuit (Third Circuit) in Marks v. Stinson. (14) In that case, William Stinson and Bruce Marks sought a vacant seat in the Pennsylvania State Senate. In a close race, a large turnout of absentee votes won the election for Stinson.
Notably, Stinson engaged in a fraudulent campaign that deceived minority voters, persuading them that state law permitted them to use absentee ballots to vote from their homes, thereby eliminating their need to vote at the polls. Stinson's aids also engaged in document forgery and collusion with the County Board of Elections, which ultimately counted ballots and reported results.
Marks, along with eight named voters, filed suit in state court. After proceedings were held-up in state court, Marks filed suit in federal district court to enjoin Stinson from being awarded the Senate seat. The district court, finding voter fraud, entered a preliminary injunction and directed the Board of Elections to certify Marks as the winner. On appeal, the Third Circuit affirmed the district court's order granting a preliminary injunction, preventing Stinson from exercising any authority in office. The Third Circuit, however, vacated the district court's decision ordering Marks be certified as the winner.
Specifically, the Third Circuit held that the district court could not direct certification of a candidate unless it found, on the basis of the evidence, that the designated candidate would have won but for the wrongdoing. On remand, the district court determined that Marks would have won but for the absence of Stinson's offenses, and certified Marks as the election winner. Thus, the standard set by the courts for overturning an election is that the fraudulent votes must affect the result or outcome of the election.
According to a recent study in the year 2000, 163 cases growing out of contested elections had come before the Senate as of that date. That report also indicates that there have been 603 contests brought to the House for consideration. Presidential elections have not been immune to recount and contest requests either. At the presidential level, major disputes took place in 1801, 1825, 1876, and 2000. All of these disputes required the assistance of Congress or the Supreme Court to be resolved.
The most visible recent election dispute in the United States occurred during the 2000 Presidential election. I will first address the election process for President of the United States and then I will talk specifically about the 2000 election. Contrary to what many people think, the individual citizens of the United States of America do not cast votes directly for the President. According to our Constitution, citizens of each state vote for Electors, people who commit themselves to vote for a particular candidate. (15)
The number of Electors in each state is equal to that state's number of Senators and members of the House of Representatives (Representatives) combined. (16) There are at this time 538 electoral votes nationwide; 435 Representatives, 100 Senators, and 3 Electors for the District of Columbia. (17) This body of Electors is collectively referred to as the Electoral College. In order to win an election, therefore, a candidate must secure a majority of the Electoral College votes, or 270 votes. If no candidate receives the required number of votes then the election for President is determined by a vote of the House of Representatives. (18)
The dispute over the 2000 election was resolved by the Supreme Court. The election results were extremely close. On election night, Vice President Albert Gore actually called then Governor George W. Bush and conceded the loss of the election. Before delivering a concession speech, however, Mr. Gore telephoned Mr. Bush again and retracted his concession because he believed that his team had uncovered some irregularities with the tabulation of the votes in the State of Florida. Florida has a large population and therefore has 25 electoral votes. It became the deciding State in the election.
On November 8, 2000, the day following the Presidential election, the Florida Division of Elections reported that Mr. Bush had won the State's popular vote, but by a margin of less than one-half of one percent. As a result, under Florida voting law, an automatic machine recount was conducted, the results of which still showed Mr. Bush winning, but by a slightly narrower margin. Mr. Gore then sought manual recounts in four of Florida's counties. What followed was a series of disputes in the Florida State courts which were eventually resolved by the United States Supreme Court.
Mr. Gore challenged the recount results, stating that the machines counting the ballots did not detect valid votes for President. Florida employs several different voting systems, and the decision of which system to use in any particular county is left to government authorities on the county level. A brief explanation of how votes were being cast in the counties in question may be useful.
The voter used a stylus to punch a hole in the card next to the candidates name. A machine counted those ballots by shooting a ray of light through the ballot. A vote was recorded automatically when a ray of light passes through the empty hole created by the punch. If the stylus did not actually puncture the ballot, the machine would not detect the indentation as a vote. These votes were called "undervotes."
Many of the "undervotes" consisted of a partially detached piece of paper called a "chad" that the voting machines may or may not have registered as a vote. In the cases in which the punch cards were merely indented, but were not punctured all the way through, the machine would not have picked up the vote, and it also made it very difficult to determine during a manual recount whether it was an intended vote at all. Mr. Gore petitioned in the Florida courts for manual recounts in certain counties in order to count these votes that may not have been detected by the machines.
Ultimately, on December 8, 2000, the Supreme Court of Florida held, among other things, that Mr. Gore had met his burden of proof in challenging the recounts and ordered that manual recounts should be held in one particular county and also stated that proper "relief would require a counting of the legal votes contained within the undervotes in all counties where the undervote has not been subjected to a manual tabulation." (19) The Florida Supreme Court also determined that a "legal vote" was "one in which there is a clear indication of the intent of the voter." (20)
This standard for what was a legal vote left much room for interpretation on the part of individual counties. During a manual recount, election workers actually examined each ballot by hand. An attempt was made to discern whether a hole is punched next to the candidate's name. It was difficult to determine the will of the voter in a hand count of punch card ballots, since chads or punch holes sometimes were loosened accidentally and did not reflect an actual vote.
On December 9, 2000, Mr. Bush filed an emergency application for a stay of the mandate with the Supreme Court. The Supreme Court treated the application as a petition for certiorari and granted it. Mr. Bush's petition presented the following questions: "whether the Florida Supreme Court established new standards for resolving Presidential election contests, thereby violating Art. II, §1, cl. 2, of the Constitution and failing to comply with 3 U.S.C. § 5, and whether the use of the standardless manual recounts violate[d] the Equal Protection and Due Process Clauses" (21) of the Constitution.
With respect to the equal protection question, the Supreme Court found a violation of the Equal Protection Clause because under the procedures outlined by the Florida Supreme Court, there was no guarantee that every citizen could be assured that his or her vote had been examined with equal attention as the votes of other citizens.
In a per curiam opinion issued on December 12, 2000, the Supreme Court held that the Florida Supreme Court had ordered a statewide manual recount of votes with minimal procedural safeguards. The Supreme Court stated, "[W]hen a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied." (22)
In coming to its conclusion, the Supreme Court emphasized the different standards that were being used in different counties to determine a legal vote. Some counties were using much less strict standards than other counties, and some counties were changing the standard for determining a legal vote in the middle of the recount.
The Supreme Court determined that, "the recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount . . . . The contest provision, as it is mandated by the State Supreme Court, is not well calculated to sustain the confidence that all citizens must have in the outcome of the elections.
The State has not shown that its procedures include the necessary safeguards." (23) According to the Court, "[w]hen the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter." (24)
Seven of the Supreme Court Justices agreed that without an implementation of uniform standards for the manual recount there would be a violation of the Equal Protection Clause. Two of the seven justices believed there was enough time to perform a manual recount employing uniform standards. The majority, however, held that there was not enough time.
By a five to four vote, the Court stated that it was the clear intent of the Florida legislature to comply with the provisions of 3 U.S.C. § 5. That statute, the Court held, requires that "any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12," (25) and because the opinion of the Supreme Court was issued on December 12, 2000, there was clearly no time to order a recount.
Now, turning to Ukrainian elections, the most visible election dispute in Ukraine took place during the 2004 presidential elections. Despite the allegations of widespread fraud,26 the Central Election Commission (CEC), on November 24, 2004, nevertheless voted to declare Mr. Viktor Yanukovych, the Prime Minister, the winner of the run-off election against Mr. Yushchenko, the opposition candidate.
On November 25, 2004, Mr. Yushchenko's representatives immediately filed a complaint with the Supreme Court of Ukraine. The complaint alleged that the final vote tallies in forty territorial districts, twenty percent of all districts, were falsified. The complaint also focused on voter list irregularities, improper use of absentee ballots, certification of precinct voting where the number of votes exceeded the number of registered voters (e.g., over 100% voter turn-out in Mykolayiv oblast), and multiple voting.
In an initial display of authority, the Supreme Court prevented the CEC from officially certifying the final vote count until the Supreme Court issued a decision addressing Mr. Yushchenko's allegations of fraud. Over the span of five days, the Supreme Court heard oral arguments in the matter of Yushchenko v. CEC.
For the first time in the history of Ukraine, the fate of a nation rested solely upon a decision of the Supreme Court. The executive and legislative branches found themselves helpless as they waited for the Court's decision to come down. On December 3, 2004, after deliberating for approximately seven hours, the Supreme Court issued its historic decision.
The Supreme Court began by overturning the CEC's November 24, 2004, vote count. The decision to overturn the vote count was based, in part, on the CEC's failure to consider the complaints filed by Mr. Yushchenko. Further, the Supreme Court concluded that, in accordance with provisions of the "Law on the Election of the President" and the Constitution of Ukraine, the CEC should not be permitted to officially certify the vote because complaints before lower courts were not yet resolved.
Therefore, the November 21st run-off election was for all practical purposes "invalid." The Supreme Court then determined that the appropriate remedy to redress the violations was to order the CEC to conduct a "repeat second round" of voting in every precinct in Ukraine. The Supreme Court also ordered that the additional round of voting would need to take place within three weeks and would be limited to the two candidates who initially advanced to the run-off.
Although the Supreme Court of Ukraine should be saluted for seizing upon the unique opportunity in Yushchenko v. CEC to shape the law and the legal system in the same manner that the United States Supreme Court did in Marbury v. Madison two hundred years ago,27 important issues regarding venue and jurisdiction in election disputes remain unresolved. Jurisdiction concerns a court's authority to review the subject matter of a dispute whereas venue defines the geographic limits of where the adjudication must take place.
During Parliamentary elections of 1998 and 2002, the Law on Elections of deputies allowed candidates to challenge the election procedure and election results. As a result, the courts were overloaded with disputes. In 1998, the Courts of Ukraine of all levels reviewed 162 disputes by participants in the election process, while in 2002 the courts reviewed more than 500 disputes.28
The courts' resolution of the enormous number of election disputes was characterized by inconsistent rulings and failure to take jurisdiction, as well as the improper taking of jurisdiction, among courts of first instance, as well as reviewing courts, and contributed to confusion among the courts, parties and the public. In fact, some cases were heard in seemingly improper venues.
For example, in 1998, the election of the mayor of the City of Odesa was challenged in the City of Kirovohrad, which is in a different oblast. The Kirovohrad Court invalidated the election. Likewise, a court in the city of Lviv invalidated the June 29, 2003 election of the mayor in the City of Mukachevo; again, a city in a different oblast. It appears that someone in these instances selected a forum that would most likely produce the results he/she was seeking. Establishing concrete jurisdictional and venue rules will eliminate forum-shopping issues which presented concerns and problems in the past.
Lastly, in February 2002, the Verkhovna Rada adopted the Law on the Judiciary, which contemplated the creation of specialized courts. In 2004, an Administrative Specialized Court was created by statute, its jurisdiction includes adjudication of election disputes. This specialized court system is still in its formative stage and is not yet fully operational.
It also bears mention that the new Administrative Procedure Code, currently pending before the Parliament after an initial veto by President Yushchenko, will prove to be a valuable resource for both the judiciary and election law practitioners as it consolidates several substantive laws into a single document.
The code explicitly references the rule of law and the case law of the European Court of Human Rights as the sources of law for administrative courts. The code also enumerates the possible petitioners, as well as respondents, in an election dispute and imposes specific filing deadlines for bringing suit. In addition, the code clarifies the jurisdiction at the trial court and appellate levels and empowers the courts to determine what remedial measures, if any, should be undertaken.
While significant strides were made in the previous year which have not gone unnoticed, the time has come to turn rhetoric into reality. The recognition and application of standard procedures in adjudicating election disputes will be a step in the right direction to make the electoral process more fair and efficient, for it will help prevent frequent reversals and improve the public perception of the process.
It is not enough, however, that compliance occur on paper, it must also be evident in performance and execution. With all the past criticisms leveled against the judiciary, it is also true that judges will not be respected until they respect themselves. As was set forth in my testimony before the Verkhovna Rada on March 16, 2005, implementation of judicial and legal reforms will not be a simple endeavor. Nevertheless, these tasks must be undertaken for the Rule of Law to prevail in Ukraine.
Once again, I appreciate the opportunity to address this conference and I thank you for your time.
FOOTNOTES:
1 Judge of the United States Court of Federal Claims appointed by President Ronald Reagan in May 1987. Judge Futey has been active in various Rule of Law and Democratization Programs in Ukraine since 1991. He served as an advisor to the Working Group on Ukraine's Constitution, adopted June 28, 1996.
2 Westberry v. Sanders, 376 U.S. 1 (1964).
3 Roudebush v. Hartke, 405 U.S. 15, 19 (1972).
4 See Hendon v. Clarke, H.R. Rep. No. 453, 98th Cong., 1st Sess. 4 (1983).
5 Paul v. Gammage, H.R. Rep. No. 243, 95th Cong., 1st Sess. 3 (1977).
6 Pierce v. Pursell, H.R. Rep. No. 245, 95th Cong., 1st Sess. 3 (1977).
7 U.S. Const. art. I, § 4.
8 H.R. Rep. No. 91-569, at 2 (1969), reprinted in 1969 U.S.C.C.A.N. 1456.
9 Baker v. Carr, 369 U.S. 186, 217 (1962) (holding that the American judiciary lacks jurisdiction to review political questions).
10 395 U.S. 486 (1969).
11 514 U.S. 779 (1995).
12 766 F.2d 1078 (7th Cir. 1985).
13 "Re Law on Election of National Deputies to the Verkhovna Rada of Ukraine," Visnyk Konstytutsiinoho Sudu Ukrainy 2 (1998): 4.
14 19 F.3d 873 (3d Cir. 1994).
15 U.S. Const. art. II, § 1, cl. 2.
16 Id.
17 U.S. Const. amend. XXIII.
18 U.S. Const. amend. XII.
19 Gore v. Harris, 772 So. 2d 1243, 1246 (2000).
20 Id.
21 Bush v. Gore, 531 U.S. 98, 103 (2000).
22 Id. at 109.
23 Id.
24 Id. at 104.
25 Id. at 110.
26 International Republican Institute Preliminary Statement (Nov. 22, 2004).
27 See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803) (establishing the doctrine of judicial review).
28 Speech by Mykhailo Ryabets, Head of the Central Election Commission of Ukraine, Munich, February 15, 2002.
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