Article 25 – Access to the political system

451. The United States political system is generally open to all adult citizens. The right to vote is the principal mechanism for participating in the U.S. political system. The requirements for suffrage are determined primarily by state law, subject to the limitations of the U.S. Constitution and federal laws that guarantee the right to vote. Over the course of the nation’s history, various amendments to and interpretations of the Constitution have marked the progress toward universal suffrage. In particular, the Supreme Court’s interpretations of the Equal Protection Clause of the Fourteenth Amendment, as well as the Nineteenth Amendment, have expanded voting rights in a number of areas.

452. The administration of elections in the United States is decentralized, and is entrusted primarily to local governments. The Voting Rights Act of 1965, 42 U.S.C. 1973-1973aa-6, prohibited discriminatory voting practices and established federal oversight of the administration of elections in certain “covered jurisdictions” that had a history of discriminatory voting practices. As noted in the Second and Third Periodic Report, in response to issues that arose concerning balloting in the 2000 election, in 2002 Congress enacted the Help America Vote Act (HAVA), 42 U.S.C. 15301 – 15545. That Act provides funds for the purchase of new voting equipment to assist in the administration of federal elections, and establishes minimum federal election administration standards. HAVA’s requirements include provisional balloting, identification for new voters, voter education, voting equipment for voters with disabilities, and statewide computerized voter registration lists.

453. In keeping with commitments made by the United States and the other 54 States that participate in the Organization for Security and Cooperation in Europe (OSCE), the United States has invited the OSCE to observe every presidential and midterm election since 1996, including the elections of 2000, 2004, 2006 and 2008. The OSCE deployed an Election Observation Mission (EOM) in 2002, an EAM in 2004, an EAM in 2006, and a Needs Assessment Mission (NAM) and a Limited Election Observation Mission (LEOM) in 2008. OSCE’s reports have in essence found that U.S. elections are conducted in an environment that reflects a long democratic tradition, including institutions governed by the rule of law, free and professional media, and civil society involved in all aspects of the election process. With respect to the 2008 presidential election, the OSCE found that the November 4 general election “demonstrated respect for fundamental freedoms, the rule of law and transparency” and that the regulatory framework guaranteed equal opportunity to the candidates and facilitated an open, competitive, and freely debated campaign. The OSCE noted further, however, that “concerns that arose during the recent elections have yet to be fully addressed in some states, and the continuation of efforts to further enhance public confidence in the election process would be appropriate.” The types of concerns involved inconsistencies among election standards, possible conflicts of interest arising from the way election officials are appointed in some cases, and allegations of electoral fraud and voter suppression in the pre-election period. Through the Voting Rights Act, HAVA and other relevant federal and state laws, the federal government and the states continue to work actively to ensure that elections in the United States are open and fair and that the public can have confidence in that fact.

454. Disability. The right to vote is guaranteed to citizens who are blind or have another disability by Section 208 of the Voting Rights Act, 42 U.S.C. 1973aa-6, by the Voting Accessibility for the Elderly and Handicapped Act of 1984, 42 U.S.C. 1973ee et seq., and by the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12131 et seq. (prohibiting discrimination against persons with disabilities in all programs of state and local governments). Section 301 of HAVA, 42 U.S.C. 15481, also sets forth new requirements that voting systems be accessible for voters with disabilities so that they are able to vote with the same opportunity for privacy and independence as other voters. Given the fundamental importance of voting as a civil right, DOJ conducted a large-scale compliance review to evaluate the accessibility of polling places in the fifth largest American city, Philadelphia, Pennsylvania. On April 16, 2009, the City of Philadelphia entered into a settlement agreement with DOJ pursuant to Title II of the ADA that will give people with mobility disabilities a greater opportunity to vote in person at the polls, rather than voting by alternative ballot because of inaccessible polling places. In addition to creating a far greater number of polling places that are accessible to individuals with mobility disabilities, DOJ’s expectation is that this compliance review and the related settlement will also serve as a model for other cities as they seek to ensure that individuals with disabilities are able to exercise this crucial civil right.

455. Citizenship. Under federal law and the laws of the various states, the right to vote is almost universally limited to citizens of the United States.

456. Absence from jurisdiction. All states have procedures that permit those who will be out of town on election day, or who are prevented because of injury or illness from going to the polls, to vote by absentee ballot, either by mail or in person in advance of the election. Many states now also allow early voting for a specified period of time prior to election day. The right to vote in federal elections by overseas citizens and members of the military and their dependents is guaranteed by the Uniformed and Overseas Citizens Absentee Voting Act, 42 U.S.C. 1973ff et seq.

457. Criminal conviction and mental incompetence. The Fourteenth Amendment to the United States Constitution explicitly recognizes the right of states to bar an individual from voting “for participation in rebellion, or other crime.” Accordingly, most states deny voting rights to persons who have been convicted of certain serious crimes. The standards and procedures for criminal disenfranchisement vary from state to state. In most states, this inability to vote is terminated by the end of a term of incarceration or by the granting of pardon or restoration of rights.

458. Felony disenfranchisement is a matter of continuing debate in the states of the United States. It has been criticized as weakening our democracy by depriving citizens of the vote, and also for its disproportionate affects on racial minorities. As noted in the Second and Third Periodic Report, in August 2001 the National Commission on Federal Election Reform, chaired by former Presidents Carter and Ford, recommended that all states restore voting rights to citizens who have fully served their sentences. At the time of the previous report, a number of states had moved to reduce the scope of felony disenfranchisement or otherwise to facilitate the recovery of voting rights for those who can regain them.

459. Since the submission of the Second and Third Periodic Report in 2005, modification of state laws and procedures has continued. For example, in 2005, the Governor of Iowa issued an executive order eliminating lifetime disenfranchisement for persons convicted of an “infamous crime” and making restoration of voting rights automatic for persons completing their sentences. This order, however, was revoked by a successor Governor in 2011. Also in 2005, the legislature in Nebraska repealed its lifetime ban on voting for all felons and replaced it with a 2-year post-sentence ban. In 2006, Rhode Island voters approved a referendum to amend the state’s constitution to restore voting rights to persons currently serving a sentence of probation or parole. In 2006, the Tennessee legislature amended its complex restoration system to provide a more straightforward procedure under which all persons convicted of felonies (except electoral or serious violence offenses) are now eligible to apply for a “certificate of restoration” upon completion of their sentences. In 2007, the Maryland legislature repealed all provisions of the state’s lifetime voting ban and instituted an automatic restoration policy for all persons upon completion of a sentence. In 2009, the Washington state legislature enacted the Washington Voting Rights Registration Act, which eliminates the requirement that persons who have completed their felony sentences pay all fees, fines and restitution before being allowed to vote. Florida, however, toughened its laws in March 2011, banning automatic restoration of voting rights for all convicted felons. Currently 48 states restrict voting by persons convicted of felonies in some manner; further information on felony disenfranchisement can be found in the Common Core Document.

460. In July 2009, a bill entitled the Democracy Restoration Act of 2009 was introduced in both the Senate (S. 1516) and the House of Representatives (H.R. 3335). This bill would establish uniform standards restoring voting rights in elections for federal office to Americans who are no longer incarcerated but continue to be denied their ability to participate in such elections. A hearing on H.R. 3335 was held in the House of Representatives on March 16, 2010, but the bills did not proceed further. This legislation has been reintroduced in the House in the 112th Congress (H.R. 2212).

461. District of Columbia. The United States was founded as a federation of formerly sovereign states. In order to avoid placing the nation’s capital under the jurisdiction of any individual state, the United States Constitution provides Congress with exclusive jurisdiction over the “Seat of Government of the United States,” which is the District of Columbia. U.S. Const. art. 1, sec 8. The right of residents of the District of Columbia (D.C.) to vote for the President and Vice President is guaranteed by the 23^rd Amendment. D.C. residents are represented in the House of Representatives by a Delegate, who sits, votes and participates in debate in House committees. In some Congresses in the past, the District of Columbia delegate has also had a vote in the Committee of the Whole of the House. This vote was eliminated in a revision of House rules at the beginning of the 112^th Congress, H.Res. 5, January 5, 2011. D.C. does not have representation in the Senate.

462. The issue of full representation in the U.S. Congress for residents of the District of Columbia has been under active discussion during the last several years and is currently under consideration by Congress. Currently, although residents of the District of Columbia may vote in Presidential elections, they cannot vote to elect a Member of the U.S. House of Representatives or of the U.S. Senate who has full voting rights in the Congress. Since submission of the Second and Third Periodic Report in 2005, several bills have been introduced in both houses of Congress, including the District of Columbia House Voting Rights Act of 2009, H.R. 157 and S. 160. This bill was passed by the Senate in February 2009, but was made subject to an amendment modifying D.C. gun control laws. Because of complications raised by this amendment, the bill did not come up for a vote in the House of Representatives. The bill has been reintroduced in the House in the 112th Congress. This is also an issue about which some civil society representatives have expressed particular concern.

463. Insular areas. Residents of Guam, the U.S. Virgin Islands, American Samoa, the Commonwealth of the Northern Mariana Islands, and Puerto Rico do not vote in elections for President and Vice President. The Twelfth and Twenty-Third Amendments to the Constitution extend the right to vote in presidential elections to citizens of “states” and to citizens of the District of Columbia, but these provisions have been interpreted to not extend to the Insular Areas. See Attorney General of Guam v. United States, 738 F.2d 1017 (9th Cir. 1984) (residents of Guam not permitted to vote in presidential elections). Igartua-De la Rosa v. United States, 32 F.3d 8 (1st Cir. 1994), and Igartua-De la Rosa v. United States, 229 F.3d 80 (1st Cir. 2000) (residents of Puerto Rico had no right under Article II of the constitution to vote in presidential elections); Romeu v. Cohen, 265 F.3d 118 (2d Cir. 2001) (federal and state laws denying a former resident of New York the right to vote in presidential elections once he became resident of Puerto Rico were not unconstitutional). Residents of each of these insular areas do elect a delegate to the House of Representatives who, like the representative for the District of Columbia, sits and votes in individual committees and participates in debate but cannot vote in the Committee of the Whole in the House. (See Common Core Document.)

464. Removal from office. Article II, section 4 of the Constitution provides that “[t]he President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Under Article I, the House of Representatives has the sole power to impeach, and the Senate has the sole power to try impeachments. In addition, each House of Congress has the power to judge the qualifications of its members and (by a two-thirds vote) to expel members. Similar procedures are generally available at the state and local level. Legal safeguards exist to protect office holders from abuse of these processes. Powell v. McCormack, 395 U.S. 486 (1969) (Congress cannot exclude a member for failure to satisfy any qualifications beyond those prescribed by the Constitution); Bond v. Floyd, 385 U.S. 116 (1966) (exclusion for the expression of political views violates the free speech guarantee of the First Amendment). Also commonly available at the state and local level is the recall process, by which voters can petition for an election to determine whether an elected official should remain in office.

465. Two impeachments have occurred since the submission of the previous report in 2005. First, after having been arrested for corruption (fraud and influence peddling) in December 2008, Illinois Governor Rod Blagojevich was impeached by a vote of the Illinois General Assembly and thereafter removed from office by the Illinois State Senate in January 2009. Blagojevich was convicted of making false statements to the FBI in August 2010, and was retried on some counts of corruption. In June 2011, a jury found Blagojevich guilty on 17 or 20 counts of public corruption. Second, on January 20, 2009, the U.S. House of Representatives voted to impeach Federal Judge Samuel Kent for high crimes and misdemeanors on the grounds that he had abused his power and lied to cover up sexual assaults on two women who worked for him in Galveston, Texas. Avoiding an impeachment trial in the Senate, he resigned from office effective June 30. Because federal judges hold their offices “during good Behaviour,” only Congress can remove a federal judge from office.

466. Corporate and other Political Contributions. In January 2010, the Supreme Court held that because communications related to candidate elections that are funded by corporations, unions, and other organizations constitute “speech” under the First Amendment to the U.S. Constitution, the government may not ban or place a ceiling on such spending. See Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010). The Court held that such expenditures may be regulated through disclosure and disclaimer requirements, which do not have the effect of suppressing speech. In April 2010, a bill entitled the DISCLOSE Act (Democracy is Strengthened by Casting Light on Spending in Elections) was introduced in both the Senate and House of Representatives in the 111th Congress to blunt the effects of the Citizens United case with regard to the role corporations and other large entities can play in elections. The bill would impose comprehensive new disclosure requirements on corporations, labor unions, trade associations and non-profit advocacy groups that spend funds for elections. Although the bill failed to achieve sufficient votes to overcome a filibuster in the Senate, its proponents intend to continue pushing for passage.

Access to public service

467. The U.S. Government employs approximately 2,756,000 civilian workers in the executive and legislative branches, located in the 50 states, the District of Columbia and various territories. With few exceptions, federal employees are selected pursuant to statutes establishing a merit-based civil service system designed to make employment opportunities available to the most qualified applicants through recruitment, hiring, retention and evaluation procedures that are free from considerations of politics, race, sex, religion, national origin, disability, age, or other non-merit-based factors, including but not limited to sexual orientation and gender identity. The statutory mandate for the federal civil service provides that:

468. The 1978 Civil Service Reform Act created a federal equal opportunity recruitment program to meet the goal of recruitment from all segments of the workforce. One of the purposes of the Act is to promote “a competent, honest, and productive federal workforce reflective of the nation’s diversity.” Pursuant to this mandate, efforts are taken to recruit minorities and women who may be underrepresented in various job categories. Efforts are also made to ensure that the selection procedures themselves are not biased and do not artificially eliminate from consideration otherwise qualified members of underrepresented groups. National policy in this area has been codified in various federal, state and local civil rights laws designed to ensure that employment decisions at all levels of government are free from bias based on race, sex, religion, national origin, disability and age. It is also the policy of the federal government not to discriminate in employment on the basis of other non-merit factors, including political affiliation, sexual orientation, gender identity, marital status, genetic information, or membership in an employee organization. Various laws also provide aggrieved individuals access to independent and impartial tribunals to adjudicate alleged violations of their rights.

469. In 2002, Congress strengthened the protections for civil service workers by enacting the Notification and Federal Employee Anti-discrimination and Retaliation Act of 2002 (NoFEAR Act), P. L. 107-174. This Act makes federal agencies directly accountable for violations of anti-discrimination and whistleblower protection laws. Under the Act, agencies must pay out of their own budgets for settlements, awards, or judgments against them in whistleblower and discrimination cases. In addition, they must engage in substantial outreach to employees concerning their rights, training of managers and supervisors concerning non-discrimination, improvement of complaint processes, and data collection.

470. The federal civil service and many state and local civil service programs have taken steps to protect their employees from political influence. The Hatch Act, enacted in 1939 and subsequently amended, limits the ways in which federal employees can actively participate in partisan politics. Congress determined that partisan political activity must be limited in order for public institutions to perform fairly and effectively. However, the law generally does not prohibit federal employees from registering, voting, making financial contributions to political candidates, and expressing their personal opinions on political candidates and questions. In addition, federal and state governments continue to address actual and apparent attempts to influence government officials in official matters. President Obama, through Executive Order 13490 of January 21, 2009 and related measures, has taken historic steps to close the “revolving door” that carries special interest influence in and out of government by prohibiting former lobbyists from working on issues on which they lobbied or in agencies they previously lobbied and barring them altogether from holding future positions on advisory boards and commissions.

471. The policies and protections of the federal, state and local civil service systems offer all Americans the promise of being treated equally in civil service employment. Although women and minorities are still overrepresented at the lower levels of pay and authority in the public sector, their status in public sector employment generally exceeds their status in private sector employment. In fiscal year 2008, women constituted 44.2 percent of the federal civilian workforce. The number of women appointed to high-level government positions in federal, state and local government (including the judiciary), and on special advisory commissions on a wide range of specialized subjects continues to increase. Despite gains of the type noted here, however, the systematic inclusion of women at all levels of the policy-making and planning processes is far from complete.

472. National executive offices. President Obama appointed seven women to serve in Cabinet or Cabinet-level posts, including the Secretary of State, the Secretary of Homeland Security, the Secretary of Health and Human Services, the Secretary of Labor, the head of the Council of Economic Advisers, the Administrator of the U.S. Environmental Protection Agency and the U.S. Ambassador to the United Nations. This is the highest number of women ever to serve in Cabinet or Cabinet-level posts at the outset of a presidential administration.

473. United States Congress. According to a report by the Congressional Research Service, 91 women serve in the 112th United States Congress (2011-2013) – 17 in the Senate and 74 in the House of Representatives (including 3 Delegates from Guam, the Virgin Islands and Washington, D.C.). See http://www.senate.gov/reference/resources/pdf/R41647.pdf.

474. According to the House of Representatives website, Women in Congress, 26 (27.9 percent) of the women in Congress are women of color. A total of 15 Black or African American women, 7 Hispanic or Latino women and 5 Asian/Pacific American women are currently serving in Congress. Women make up approximately 18 percent of Congress overall. Nancy Pelosi, the first woman to serve as Speaker of the House, held the highest position in the House and was second in the Presidential line of succession, after the Vice President. Three other women also hold other leadership positions in Congress.

475. Women appointed to the Supreme Court. The first Justice nominated and confirmed for the Supreme Court in President Obama’s administration is a Hispanic/Latina woman, Justice Sonia Sotomayor. Because Justice Sotomayor replaced a male Justice, Justice Souter, her appointment brought the number of women on the Supreme Court back to two of 9 (22 percent). In addition, a second woman, Elena Kagan, has since been confirmed for a seat on the Supreme Court to replace a male justice, Justice Stevens. With her confirmation, there are now three women on the Court, constituting one-third of the justices.

476. State elective executive offices. As of January 2009, seven women were serving as Governors of states in the United States. In addition, eight women are serving as Lieutenant Governors of states. In three states that do not have Lieutenant Governors, women hold positions such as Attorney General, Senate President or Secretary of State, which put them second in line to the Governor.

477. State legislatures. According to the National Conference of State Legislatures, as of May 2011, 1,739 women were serving in the 50 state legislatures, representing 23.6 % of all state legislators nationwide. This is a slight decrease from the 2010 session’s ratio of 24.5 % female legislators. One state – Colorado – had 41 % female legislators. Six other states – Washington, Vermont, Minnesota, Maryland, Hawaii, and Arizona – had over 30 % female legislators. http://www.ncsl.org/default.aspx?tabid=21606.

478. The representation of minority groups at all levels of the public sector continues to increase. However, there is still considerable room for further growth.

479. U.S. Congress. Like women, members of minority groups made gains in Congressional representation as a result of the 2008 elections. The 112th Congress, which began in 2011,includes 44 Black or African American members in the House of Representatives (including 2 delegates); 28 Hispanic/Latino members (26 in the House, including the Resident Commissioner, and 2 in the Senate); and 13 Asian-American/Pacific Islander members (11 in the House, including 2 Delegates, and 2 in the Senate). CRS Report, Membership of the 112^th Congress: A Profile,” http://www.senate.gov/reference/resources/pdf/R41647.pdf. There are also five members of the House who identify themselves as Arab American, and four openly gay or lesbian members of Congress.

480. Executive office appointments. President Obama’s Cabinet and Cabinet-level positions include four Blacks or African Americans, three Asian Americans and two Hispanics/Latinos. Thirteen of the 21 persons in Cabinet and Cabinet-level positions (62 percent) are either women, members of minority groups or both. The President has also appointed many openly lesbian, gay, bisexual, or transgender (LGBT) Americans to various executive and judicial positions, including the Director of the Office of Personnel Management.