This article by Adela Carrasco and Todd Howland outlines the current international human rights obligations related to the right to vote found in human rights treaties the U.S. has signed and ratified. The authors demonstrate that there are five ways the U.S. fails to meet these human rights laws and how each failing has a disproportionate impact on people of color.
Article by Adela Carrasco and Todd Howland*
Most Americans would reiterate the long-told story of the U.S., that one person, one vote is the law of the land. Most Americans are unaware that voting power in the U.S. is skewed; the value of one vote is not the same as another, and millions of U.S. citizens are denied the right to vote and/or do not have representation in the federal government.
It is nothing short of a systematic violation of human rights that all U.S. citizens are not treated equally when it comes to the great potential equalizer, the right to vote. Now is the time to change this reality to give all U.S. citizens the equal right to vote, and Minnesota, the flash point for international public protests against racial inequality and police brutality, is the perfect place to start this change. Minnesotans must ask themselves if they want to be known as the state where a Minneapolis police officer killed George Floyd by kneeling on his neck for 8 minutes and 46 seconds or the state that started the process to end the unfinished journey from slavery, marginalization, and discrimination, to every U.S. citizen having the right to vote?
Minnesota, a State known as a champion of human rights, can and should be the first state to call for an amendment to the U.S. constitution that will give every U.S. citizen the equal right to vote in federal elections. This change, which is simply one part of righting the historic wrongs practiced against people of color in the U.S., is needed to conform U.S. practice with human rights law and to guide the U.S. into a more just and equal society.
Minnesota, Human Rights Champion and Human Rights Violator, has the Moral and Historical Duty to Lead the One Person/One Vote Fight
Since World War II, Minnesota has been at the forefront in advocating for the adoption of human rights principles and the advancement of international respect for human rights. Numerous Minnesotans have been trailblazers in the area of human rights. Most notably, Harold Stassen, a three-term Republican governor of Minnesota (1938-1940-1942), who, upon his death in 2001 at 93, was the last living American signatory of the United Nations Charter.[1] Stassen actively contributed to creating the United Nations, advocating for and advancing the UN’s three principal objectives: peace, development and the respect for human rights.
Donald Fraser was also directly involved in advancing human rights in the U.S. Fraser served in the U.S. Congress (MN-5th) from 1962 to 1978.[2] He advocated for U.S. foreign policy to respect and promote international human rights. His efforts transformed the U.S. State Department’s work on human rights, creating the Office on Human Rights and requiring the Department write annual reports documenting the human rights practices of every country.[3]
Minnesotan Walter Mondale was Vice President when the U.S., in 1978, signed the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights, which were adopted as legally binding treaties by the UN General Assembly in 1966.[4] Also indicative of Minnesota’s rich human rights history is Minnesota Senator Paul Wellstone’s many efforts to promote the nation’s respect of economic rights as human rights, as well as the academic contributions from the University of Minnesota, including its online Human Rights Library.
This list of Minnesotan human rights advocates goes on. In 1983, the Minnesota Advocates for Human Rights was founded. This organization lead an expert process through which was created a practical guide for those tasked with conducting investigations into suspicious and potentially State-sponsored deaths. This exemplary work was adopted by the United Nations as the UN Manual on the Effective Prevention of Extra-legal, Arbitrary and Summary Executions of 1991, and has since become known internationally as the “Minnesota Protocol.”[5]
Indeed, in Mr. Howland’s field work for the United Nations, he worked in numerous conflict zones, including post-genocide Rwanda, the Democratic Republic of Congo and Colombia as it was trying to achieve peace. In these countries and others, when he would identify himself as a native Minnesotan, there was almost without exception a stated recognition, praise and gratitude for the Minnesota Protocol on investigations of summary executions and the other work accomplished in Minnesota for the advancement of human rights.
In those moments Mr. Howland would feel pride in the work accomplished in his home state to address human suffering and injustice in the international arena. Minnesota’s history shows that it has acted bravely and loudly for the advancement of human rights in the international arena. It has insisted that the U.S. support the tenets of human rights, including the inalienable right to be free from brutalization and oppression at the hands of her government. But along with this trailblazing work, Minnesota has a long, deep history of its own abuse and violation of the human rights of the native indigenous population and its growing communities of color, in particular its Black citizens. The fact that George Floyd, and too many people of color before him, was extra-judicially murdered in Minnesota by a State actor is a very painful and difficult reality that all Minnesotans, including Minnesotan international human rights activists, must now face.
Minnesota now has the opportunity and the obligation to dig into its history as an international human rights trailblazer and apply its demonstrated zeal and vigour for the promotion of human rights domestically, to change Minnesota’s and the U.S.’s own practice of disenfranchisement and dehumanization of its own citizens of color. The time is now to use human rights law, which Minnesotans supported and created, to stop U.S. abuses.
In addition to reconceptualising community-based safety and violence prevention, as the Minneapolis City Council voted to do on June 26, 2020,[6] Minnesota has an obligation to look deeper at discrimination against people of color and the disenfranchised and act to change it. Acting now to guarantee that each and every citizen has an inalienable right to vote, and guaranteeing that that right to vote is equally accessible by all, is a good place to start.
We will reproduce the international standards relative to the right to vote and then highlight how the U.S. falls short in five specific ways. We will end with a draft of the Constitutional amendment to protect the equal right to vote of every U.S. citizen. The Minnesota legislature should be the first to request Congress to call a Convention where the Minnesota delegates can propose the needed amendment to the U.S. Constitution.
How Human Rights Law Defines the Right to Vote: The International Covenant on Civil and Political Rights and The International Covenant on the Elimination of All Forms of Racial Discrimination
The International Covenant on Civil and Political Rights (“ICCPR”) and International Covenant on the Elimination of All Forms of Racial Discrimination (“ICERD”) each require that voting to be truly free and equal. No difference in the convenience of or access to voting is permitted for any reason. Rights, under the ICCPR, are more important than mechanisms for voting (e.g., place of residence and the electoral college).[7] Human rights law, which is rooted in these Covenants, requires the U.S. to update its system to conform to current international standards and provide a legal remedy for their violation. The U.S. violation of international standards is particularly egregious given the disproportionate impact it has on U.S. citizens that are Black, Hispanic and Asian. The fact that the U.S. has made a series of reservations, understandings and declarations to the ICCPR,[8] for example, does not change the content of the treaty nor the definitive interpretative authority of the treaty made by the UN Human Rights Committee.[9]
Article 2 of the International Covenant on Civil and Political Rights
Article 2 of the ICCPR requires each its State Parties ensure that each of its citizens’ rights enumerated within the ICCPR be respected and upheld through the enactment of legislation. Article 2 specifically states as follows:
“1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.”
Article 25 of the International Covenant on Civil and Political Rights
Article 25(a), (b) of the ICCPR specifically requires that every citizen have the equal right and opportunity to vote:
“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.” (Emphasis added.)
Article 5 of the International Covenant on the Elimination of All Forms of Racial Discrimination
Article 5(c) of the ICERD further states that no government may discriminate against its citizens by restricting access to its citizens of the right to vote based upon race, colour, national or ethnic origin.[10] Specifically, Article 5 (c) of the ICERD provides:
“In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination[11] in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
(c) Political rights, in particular the right to participate in elections-to vote and to stand for election-on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service.”
Article 6 of the International Covenant on the Elimination of All Forms of Racial Discrimination
Finally, Article 6 of the ICERD requires governments to provide effective protection and remedies for any acts of discrimination based upon race, etc., including discrimination in the granting of the right to vote. It states:
“States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.”
Human rights law, as shown above, thus explicitly requires the U.S. to guarantee to each of its citizens, regardless of race or national origin, the right to vote and to provide equal access to voting. This obligation includes the obligation to change voting laws and legislation which have the “effect of nullifying or impairing the recognition, enjoyment or exercise, on equal footing, of human rights and fundamental freedoms in the political” field of public life, including the right to vote.[12] Unfortunately, the U.S. has failed to meet this obligation and its failures has resulted in millions upon millions of U.S. citizens being denied the right to vote and/or being denied equal access to voting.
Five Ways the U.S. Violates the Human Right to Vote
There are five ways the U.S. fails to meet human rights law and each has a disproportionate impact on people of color: (1) the denial of the right to vote and the denial of federal representation of U.S. citizens residing in U.S. territories (e.g., Puerto Rico, Guam, etc.); (2) indirect voting via the electoral college; (3) exclusion for felony convictions; (4) State-sponsored voter suppression; and (5) targeted voter suppression via social media.
Voter disenfranchisement has its source largely in the U.S. Constitution. The problems date back to the 1787 Constitution that enfranchised only white men and accepted slavery as a legitimate practice. Article 1, Section 2 of the Constitution contained the infamous clause which counted slaves as 3/5 of a person and excluded some indigenous people for the purpose of the census and the related division of political power. The Electoral College, an indirect voting system for the election of President and Vice President, was created by Article 2, Section 1 of the Constitution created an indirect system to elect the President and Vice President. The 17th Amendment to the Constitution limits the right to vote to those citizens of a state, thereby excluding U.S. citizens residing in U.S. territories. And the 13th Amendment, while banning slavery, expressly allowed states to impose involuntary servitude upon those convicted of crimes, the very foundation of felony conviction disenfranchisement.
There have been reforms designed to right the wrongs present in the U.S. Constitution. These reforms include: the 14th Amendment, which granted citizenship to former slaves, the 15th Amendment, which granted black men the vote and the 19th Amendment, giving women the vote.[13] The Voting Rights Act of 1965, which prohibited racial discrimination in voting, did help to limit some previous practices of exclusion.[14] While these are important milestones, the U.S. is still far away from guaranteeing each of its citizens the equal right to vote. A continual legal process that more fully develops the notion of voting as a right inherent to citizenship is required to finally get it right.
The 9th Amendment to the United States Constitution could provide the mechanism by which the next level of reform is implemented. The 9th Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, the 9th Amendment states that Articles I and II of the U.S. Constitution, which exclude U.S. citizens not residing in a State from the right to vote, as well as other laws and legislation that have had the effect of suppressing U.S. citizens’ right to vote, cannot be read and interpreted to deny U.S. citizens the right to vote found in human rights law.
What follows is an exploration of how current U.S. laws and practices violate the right to vote of its citizens.
1. Discrimination based on place and/or national origin
If you are a U.S. citizen and live in a U.S. territory, you are not permitted to vote for President and you do not have a voting Senator or a Member of the House of Representatives representing you.[15] As a result of this fact, the voting mechanism found in the U.S. Constitution disenfranchises about five million U.S. citizens – approximately the population of Minnesota – residents of Puerto Rico, Guam, American Samoa, U.S. Virgin Islands, Northern Marina Islands[16] and Washington, D.C.[17]
Only Washington, D.C., with a population of approximately 700,000, may vote in presidential elections, given the 23rd Amendment to the Constitution. However, Washington D.C. does not have representation in Congress.[18]
This denial of voting rights of U.S. citizens disproportionately impacts people of color. An examination of the ethnic breakdown of the places where U.S. citizens are excluded from federal representation shows this to be true:
Washington, D.C.: [19]
50.7% Black or African American, 38.5% Non-Hispanic White, 9.1% Hispanic or Latino, 3.5% Asian, and 4.4% Other.
U.S. Virgin Islands:[20]
76.0% Black or African American, 17.4% Hispanic or Latino, 15.6% Non-Hispanic White, 1.4% Asian, and 2.1% Other.
Guam:[21]
Chamorro 37.3%, Filipino 29.3%, Two or More Races 9.4%, Non-Hispanic White 7.1%, Chuukese 7%, Korean 2.2%, Other Pacific Islander 2%, Other Asian 2%.
Northern Marina Islands:[22]
Asian 50% (includes Filipino 35.3%, Chinese 6.8%, Korean 4.2%, and Other Asian 3.7%), Native Hawaiian or Other Pacific Islander 34.9% (includes Chamorro 23.9%, Carolinian people 4.6%, and Other Native Hawaiian or Pacific Islander 6.4%).
American Samoa:[23]
Pacific Islander 92.6% (includes Samoan 88.9%, Tongan 2.9%, Other 0.8%), Asian 3.6% (includes Filipino 2.2%, Other Asian 1.4%), Two or More Races 2.7%, Other 1.2%.
Puerto Rico:[24]
White non-Hispanic is less than 1%.
All of this to say that about five million U.S. citizens, mainly of color, a pool potentially large enough to change the result of an election, are excluded from voting in federal elections (Presidential, Senate and House of Representative). These five million people would normally have eight members in the U.S. House of Representatives. Today, they have none.
2. The Electoral College
Pursuant to the Electoral College, a candidate gets all the electoral votes of a state whether she wins it by one vote or one million. In addition to the problem of this “winner take all” logic, the Electoral College results in greater voting power granted to residents from states with small populations than to those voters from states with a mid-sized or larger population, in direct contravention of international human rights norms that every vote should count the same. While votes are roughly proportionately distributed, since even the smallest states are guaranteed three electoral votes, the people in the less populated states are over-represented in the Electoral College. For example, in Wyoming, there is an electoral vote for every 195,000 residents, in North Dakota there is one for every 252,000, and in Rhode Island one for every 264,000.[25] On the other hand, in California there is an electoral vote for every 711,000 residents, in Florida one for every 699,000, in Texas one for every 723,000 and in Minnesota one for every 564,000.[26]
The impact of the electoral college is such that votes of white U.S. citizens are given greater weight: African-American votes weigh only 95% of white votes, Hispanic votes weigh only 91% of white votes and Asian votes weigh only 93% of white votes.[27] Another study shows that a simple weighted average based on where people of color live in the U.S. reveals white presidential voters count 4% more than black presidential voters and 9% more than Hispanic presidential voters.[28]
Not only do these percentages show violation of the one-person one-vote international norm, these percentages could be enough to change the results of a Presidential election.
3. Exclusion for Felony Conviction
Exclusion of voters with a felony conviction is widely used in the United States and these laws can also constitute a violation of human rights law, if, as is almost always the case, these laws have a discriminatory impact by effectively disenfranchising people of color.
In the U.S., states impose varying degrees of felony disenfranchisement laws which, as of 2016, have had the effect of denying an estimated 6.1 million U.S. citizens from voting.[29] This population is larger than the voting eligible population of New Jersey, so enormous is the scope of this State-sponsored disenfranchisement.[30] Of the 6.1 million U.S. citizens disenfranchised for felony conviction, more than half have completed their sentences, meaning that citizens currently living within our communities are barred from voting.[31]
This disenfranchisement disproportionately impacts people of color.[32] Blacks have a disenfranchisement rate of more than four times greater than that of all other U.S. citizens, with one in every thirteen voting-age Black Americans being denied the right to vote.[33] As of 2016, in four states – Florida, Kentucky, Tennessee and Virginia – more than 20% of Blacks were disenfranchised.[34] These statistics point to the disproportionate numbers of people of color arrested, prosecuted, convicted in the U.S. And mass incarceration and harsh sentencing guidelines has led to historically unprecedented levels of disenfranchisement in the U.S.[35]
The broad felony disenfranchisement laws we see today had their genesis in the post-Civil War South and the 13th Amendment, which although outlawed slavery, carved out an exception allowing states to impose involuntary servitude to those convicted of crimes. The purpose of the exception was to allow the South’s faltering economy post-Civil War by providing cheap Black labor through convict leasing.[36] At least 90% of individuals forced into convict leasing were Black who were often arrested and convicted under an all-white criminal justice system for petty offenses.[37] The motivation for the wide felony disenfranchisement laws was to prevent newly enfranchised Black citizens from voting.[38]
This long held practice has effectively sought to silence the voice of Black citizens, and continues today. Felony disenfranchisement creates a significant and discriminatory impact on voting for people of color.
4. Voter Suppression
Voter suppression in the U.S. further violates human rights law. Voter suppression is an effort that prevents eligible voters from registering or voting. It includes requiring a specific voter identification, voter registration restrictions, voter purges, and gerrymandering.
One out of every thirteen Black U.S. citizens cannot vote due to the varying disenfranchisement laws that are a product of specific efforts of those who find their political power more important than the right to vote.[39]
On average, U.S. counties with large minority populations have fewer polling sites and poll workers per voter than U.S. counties with large white majorities.[40]
Seventy percent of Georgia voters purged in 2018 were Black.[41] The Brennan Center for Justice reports that number to be higher, at 80%.[42]
There is no doubt that voter suppression targets people of color, the numbers speak for themselves.
5. Social Media
Given the amount of data that is harvested from individuals using social media, potential voters can be microtargeted, through the use of algorithms, with a specifically tailored “news” feed often comprised of mis/disinformation created by agents, i.e. politicians, foreign governments, disinformation websites, etc. in order to incite a particular action or inaction, like, for example, voting or not voting.[43] Indeed, the power to use social media for skewing and altering elections is so enormous because social media was specifically designed to keep an individual addicted to social media.[44] As shown in the Cambridge Analytica scandal, discussed below, in terms of manipulating the potential voter, social media and in particular microtargeting is a very strong tool.[45]
Channel 4 News, the same UK-based news organization that broke the Cambridge Analytica story, recently reported that it “has exclusively obtained a vast cache of data used by Donald Trump’s 2016 presidential campaign on almost 200 million American voters.[46] It reveals that 3.5 million Black Americans were categorised by Donald Trump’s campaign as ‘Deterrence’ – voters they wanted to stay home on election day.”[47]
The information uncovered “reveals not only the huge amounts of data held on every individual voter, but how that data was used and manipulated by models and algorithms.”[48] Channel 4 News has uncovered evidence that the campaign did target Black voters with negative ads designed to suppress voter turnout. “These included videos featuring Hillary Clinton referring to Black youths as “super predators” which aired on television 402 times in October 2016 and received millions of views on Facebook.”[49]
A U.S. Senate Intelligence Committee report indicated that in 2016, social media accounts, especially those of Black voters, were targeted with disinformation as a means to suppress the vote.[50] The study shows that one Russian operative used social media particularly effectively to suppress voter turn-out, for example, posting 10.4 million tweets containing intentionally bad or misleading information regarding voting issues.[51]
Media sources and activists indicate that these tactics are being used domestically to suppress voter turnout in 2020.[52]
Equality at the Ballot Box is Long Overdue
Considering all five problems, the U.S. falls significantly short of human rights law mandates: that each U.S. citizen’s vote have the same weight and each U.S. citizen should have the same access to voting.
Of the 41 countries with combined functions of head of State and head of government, 33 have moved to direct presidential elections to avoid some votes counting more than others.[53] Some countries, like Mexico and Brazil, have solved the lack of Congressional representation by creating voting districts for those who had previously been disenfranchised.[54] There are many possible fixes, but the result needs to be that each U.S. citizen has the same access and voter weight in Presidential elections and full voting representatives in the Senate and House of Representatives.
The current voting system in the U.S. does not conform to international human rights standards and the current voting arrangement produces discrimination against people of color in the U.S. It is long overdue to address this violation of rights.
Minnesota should be the first State to request Congress to call a Convention to amend the U.S. Constitution to enshrine the right to vote.
At first, this task may seem a bit like a voyage fit for Don Quixote. But updating the U.S. Constitution to conform to international standards the U.S. voluntarily assumed is more than overdue.
A process to amend the Constitution can begin either with Congress via a two-thirds vote of both houses or via State Legislatures calling for a Constitutional Convention upon application of the legislatures of two-thirds of the states (34 of 50 states).[55]
In either case, the amendment must return to the States and obtain three-fourths of the states (38 of 50 states).[56]
More than 10,000 amendments have been proposed to the Constitution since 1787. Most often, Members of Congress propose constitutional amendments – at an average of nearly 40 every year – but almost all die in committee. Only 33 have been sent to the States and only 27 obtained the necessary support to become an amendment.[57]
Two-thirds of State Legislatures can call for a Convention to amend the Constitution. While this has been tried since 1789, this mechanism has yet to be triggered. Regardless of the difficult path to a Constitutional Convention, in the last few years – on average – well over 60 efforts a year have been documented.[58]
But extremely rare is a proposed amendment that reflects the popular understanding of a right; most people believe that all U.S. citizens have the right to vote and that each vote should be valued the same.
As found in pre-existing human rights obligations, each person has the right “to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage” and “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”[59]
Given current political polemics and power interests that would be impacted by this amendment, the resistance to approving what people already believe to be the case will be significant.
Amendment XXVIII could read:
Section 1
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State or territory without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, place of residence or other status.
Congress shall have power to enforce this article by appropriate legislation.
Section 2
Presidential Elections should be direct with each US citizen’s vote being weighed the same.
Section 3
An at-large voting district will be created for U.S. citizens not living in a State and who do not maintain residence in a State to allow for representation in the federal government. The at-large district will have two Senators and a proportional number of members in the House of Representatives based on their population.[60]
Section 4
This amendment should not be read to prevent any territory within the at-large voting district to seek and obtain statehood in accord with the U.S. Constitution.
Section 5
For purpose of federal elections, there will be no voting exclusion for a conviction of a felony.
Section 6
Congress or state legislatures can make no law that violates in practice one vote per each U.S. citizen by any State on account of without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, place of residence or other status.
Conclusion
Does Minnesota want to be known as the place where a Minneapolis police officer killed George Floyd by kneeling on his neck for 8 minutes and 46 seconds or the State that started the process to end the unfinished journey from slavery, marginalization and discrimination to every U.S. citizen having the equal right to vote?
Will the killing of George Floyd come to represent an awaking of the injustices in our midst?
As Harold Stassen said: “there will be selfishness and greed and corruption and narrowness and intolerance in the world tomorrow and tomorrow’s tomorrow. But pray God we may have the courage and the wisdom and the vision to raise a definite standard that will appeal to the best that is in [us], and then strive mightily toward that goal.”[61]
* Adela Carrasco is a litigator. Todd Howland works for the Office of the United Nations High Commissioner for Human Rights. The views expressed herein are those of the authors and do not necessarily reflect the views of the United Nations.
[1] Steve Werle, Stassen Again, 123-142 (2015); Harold E. Stassen, Who Sought GOP Nomination for President 9 Times, Dies at 93, New York Times, Mar. 5, 2001.
[2] Amelia Shindela, A Tribute to Don Fraser; a quiet crusader (Jun. 5, 2019), https://cla.umn.edu/human-rights/news-events/news/tribute-don-fraser-quiet-crusader.
[3] Amelia Shindela, A Tribute to Don Fraser; a quiet crusader, (June 5, 2019) https://cla.umn.edu/human-rights/news-events/news/tribute-don-fraser-quiet-crusader.
[4] In September 1992, The International Covenant on Civil and Political Rights was ratified by the U.S. Senate, and is now part of U.S. law under the Supremacy Clause of the U.S. Constitution. The International Covenant on Economic Social and Cultural Rights is still awaiting Senate ratification. United Nations Treaty Collection, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&clang=_en.
[5] Office of the High Commissioner for Human Rights, Revision of the UN Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (the Minnesota Protocol), https://www.ohchr.org/EN/Issues/Executions/Pages/RevisionoftheUNManualPreventionExtraLegalArbitrary.aspx.
[6] The Associate Press & MPR News Staff, Council advances plan to dismantle Minneapolis Police Dept., MPR News (Jun. 26, 2020), https://www.mprnews.org/story/2020/06/26/minneapolis-council-puts-plan-to-dismantle-police-in-motion.
[7] Article 25 of the ICCPR, “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: … (b) To vote… at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, ….” G.A. Res. 2200A (XXI), International Covenant on Civil and Political Rights (Dec. 16, 1996), https://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf.
[8] See Kristina Ash, U.S. Reservations to the International Covenant on Civil and Political Rights: Credibility Maximization and Global Influence, 3 Nw. J. Int’l Hum. Rts. 1 (2005).
[9] Gabriella Citroni, The Human Rights Committee and its Role in Interpreting the International Covenant on Civil and Political Rights vis-à-vis States Parties, Eur. J. Int’l L.: Talk (Aug. 28, 2015), https://www.ejiltalk.org/the-human-rights-committee-and-its-role-in-interpreting-the-international-covenant-on-civil-and-political-rights-vis-a-vis-states-parties.
[10] G.A. 2106 (XX), International Convention on the Elimination of All Forms of Racial Discrimination (Dec. 21, 1995), https://www.ohchr.org/Documents/ProfessionalInterest/cerd.pdf.
[11] Article 1 of ICERD defines “racial discrimination” as follows: “1. In this Convention, the term racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” Id.
[12] See id. See also Article 25(a), (b) of ICCPR (every citizen must be given the equal right and opportunity to vote) and Article 5(c) of ICERD (no government may discriminate against its citizens by restricting access to its citizens of the right to vote based upon race, colour, national or ethnic origin);UN Human Rights Office of the High Comm’r, The United Nations Human Rights Treaty System Fact Sheet No. 30/Rev. 1 1 (2012), https://www.ohchr.org/documents/publications/factsheet30rev1.pdf (“Each State party has an obligation to take steps to ensure that everyone in the State can enjoy the rights set out in the treaty.”).
As Article 25(a) of ICCPR and Article 5(c) of ICERD require that all citizens of a signatory State be permitted the right to vote, and be granted equal access to the right to vote, the State has an obligation to change voting laws that deny equal access to the right to vote based upon racial discrimination, as defined by Article 1 of ICERD.
[13] BlackPast, (1865) Reconstruction Amendments, 1865-1870, BlackPast, (Jan. 21, 2007), https://www.blackpast.org/african-american-history/reconstruction-amendments/.
[14] However, the U.S. Supreme Court undermined the Voting Rights Act of 1965 in the case of Shelby County v. Holder, 570 U.S. 529 (2013), by no longer requiring key Southern states with demonstrated histories of suppressing the vote of Black citizens to obtain federal approval to change voting laws. The Shelby case has paved the way for increased voter suppression of people of color. Jonathan Brater et al., Brennan Ctr. for Justice, Purges: A Growing Threat to the Right to Vote 3-4 (2018), https://www.brennancenter.org/sites/default/files/2019-08/Report_Purges_Growing_Threat.pdf.
[15] In its original form, Article 1, section 3 of the U.S. Constitution provided: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.” (Emphasis added.) However, the 17th Amendment to the Constitution granted to the people of each State the right to vote for their Senators, but still limited the right to vote to citizens of a State: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote.” (Emphasis added.)
[16] U.S. citizens living in the five inhabited U.S. Territories – Puerto Rico, Guam, American Samoa, U.S. Virgin Islands, and the Northern Marina Islands – do not have the right to vote in presidential elections and do not have legislative representation in the U.S. U. S. General Accounting Office, U.S. Insular Areas: Application of the Constitution 9 (1997), https://www.gao.gov/archive/1998/og98005.pdf. In each of these Territories, except American Samoa, birth-right U.S. citizenship is granted to all residents. Tuaua v. United States of America, 951 F.Supp.2d 88, 97-98 (2013). American Samoans are considered American Nationals upon birth; however, this does not prevent American Samoans from obtaining citizenship by other means.
[17] Persons born in Washington D.C., a federal district, are granted U.S. citizenship, however, like the other Territories, citizen residents of Washington D.C. are not granted full Constitutional rights and do not have the right to representation in Congress, as Washington D.C. is not a State. See Office of the Secretary, DC Voting Rights Grant, DC.gov, https://os.dc.gov/page/dc-voting-rights-grant; see also Adams v. Clinton, 90 F. Supp. 2d 35 (D.D.C. 2000).
[18] Todd Howland, Voting Rights and Wrongs, Denv. J. Int’l L. & Pol’y (Mar. 28, 2014), https://djilp.org/voting-rights-and-wrongs/.
[19] U. S. Census Bureau, United States: 2010 Summary Population and Housing Characteristics 4-5 (2013), https://www2.census.gov/library/publications/2012/dec/cph-1-1.pdf.
[20] U.S. Census Bureau, 2010 Census: Island Areas – U.S. Virgin Islands Dataset, Cross Tabulations Part 1, Table 1-1 (2016), https://www.census.gov/data/datasets/2010/dec/virgin-islands.html.
[21] U.S. Census Bureau, 2010 Census: Island Areas – Guam Dataset, Cross Tabulations Part 1, Table 1-1 (2016), https://www.census.gov/data/datasets/2010/dec/guam.html.
[22] U.S. Census Bureau, 2010 Census: Island Areas – Commonwealth of the Northern Mariana Islands Dataset, Cross Tabulations Part 1, Table 1-1 (2016), https://www.census.gov/data/datasets/2010/dec/cnmi.html.
[23] U.S. Census Bureau, 2010 Census: Island Areas – American Samoa Dataset, Cross Tabulations Part 1, Table 1-1 (2016), https://www.census.gov/data/datasets/2010/dec/american-samoa.html.
[24] U.S. Census Bureau, supra note 19.
[25] Laura Merling & Dean Baker, In the Electoral College White Votes Matter More, Ctr. for Econ. & Policy Research, (Nov. 14, 2016), https://www.cepr.net/in-the-electoral-college-white-votes-matter-more/.
[26] Id.
[27] Id.
[28] Brett Parker, The Racial and Geographic Injustices of the Electoral College, Stanford Politics, (Nov. 10, 2016), https://stanfordpolitics.org/2016/11/10/racial-geographic-injustices-electoral-college/.
[29] Erin Kelley, Brennan Ctr. for Justice, Racism & Felony Disenfranchisement: An Intertwined History 1 (2019), https://www.brennancenter.org/sites/default/files/2019-08/Report_Disenfranchisement_History.pdf.
[30] Id.
[31] Id.
[32] Id. (citing Nazgol Ghandnoosh, The Sentencing Project, Black Lives Matter: Eliminating Racial Inequity in the Criminal Justice System 10-12 (2015), https://www.sentencingproject.org/wp-content/uploads/2015/11/Black-Lives-Matter.pdf). See also The Sentencing Project, Felony Disenfranchisement 1-2 (2014), https://www.sentencingproject.org/wp-content/uploads/2015/08/Felony-Disenfranchisement-Primer.pdf; Am. Civil Liberties Union, Block the Vote: Voter Suppression in 2020, Am. Civil Liberties Union (Feb. 3, 2020), https://www.aclu.org/news/civil-liberties/block-the-vote-voter-suppression-in-2020/.
[33] Jeffery Robinson, The Racist Roots of Denying Incarcerated People Their Right to Vote, Am. Civil Liberties Union (May 3, 2019), https://www.aclu.org/blog/voting-rights/racist-roots-denying-incarcerated-people-their-right-vote.
[34] Chris Uggen, Ryan Larson, & Sarah Shannon, The Sentencing Project, 6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement: 2016 3 (2016), http://www.sentencingproject.org/wp-content/uploads/2016/10/6- Million-Lost-Voters.pdf.
[35] Id. at 9.
[36] Kelley, Brennan Ctr., supra note 29, at 1-2. See also Douglas A. Blackmon, Slavery By Another Name: The Re-Enslavement of Black People in America From The Civil War to World War II 53 (2008).
[37] Kelley, Brennan Ctr., supra note 29, at 2.
[38] Id. at 3. See also Angela Behrens et al., Ballot Manipulation and the “Menace of Negro Domination”: Racial Threat and Felon Disenfranchisement in the United States, 1850-2002, 109 Am. J. Soc. 559, 598 (2003).
[39] Am. Civil Liberties Union, supra note 33.
[40] Id.
[41] Id.
[42] Theodore R. Johnson & Max Feldman, The New Voter Suppression, Brennan Ctr. for Justice (Jan. 16. 2020), https://www.brennancenter.org/our-work/research-reports/new-voter-suppression.
[43] Beata Martin-Rozumilowicz & Rast’o Kuzel, Int’l Found. for Electoral Sys., Social Media, Disinformation and Electoral Integrity, an International Foundation for Electoral Systems Working Paper 3 (2019), https://www.ifes.org/sites/default/files/ifes_working_paper_social_media_disinformation_and_electoral_integrity_august_2019_0.pdf (“Mis/disinformation, particularly through social media, has become an increasing problem to electoral integrity and citizens’ trust in their democratic institutions. The Oxford Internet Institute’s recent report shows that ‘formally organized social media campaigns’ were taking place in 48 countries – a quarter of the countries recognized by the United Nations (UN) – up steeply from 28 in 2017.”).
Among the tools available to disinformation campaigns is “microtargeting,” a tool that uses consumer data, especially on social media, to send different, often false, information to different groups, often particular minority groups, in order to invite a specific action or inaction, like, for example, voting or not voting. Id., at 8.
A working definition of political microtargeting involves “creating finely honed messages targeted at narrow categories of voters’ based on data analysis ‘garnered from individuals’ demographic characteristics and consumer and lifestyle habits.” Colin J. Bennet & Smith Oduro-Marfo, Univ. of Victoria, Privacy, Voter Surveillance and Democratic Engagement: Challenges for Data Protection Authorities 14 (2019), https://privacyconference2019.info/wp-content/uploads/2019/11/Privacy-and-International-Democratic-Engagement_finalv2.pdf.
The danger of microtargeting is that it, and other tools like it, turns citizens into objects of manipulation and undermines the public sphere by thwarting public deliberation, aggravating political polarization, and facilitating the spread of misinformation. William A. Gorton, Manipulating Citizens: How Political Campaigns Use of Behavioral Social Science Harms Democracy, 38 New Pol. Sci. 61, 72 (2016), https://doi.org/10.1080/07393148.2015.1125119.
The ability to quickly and effectively spread mis/disinformation is due to the advertising incentives and the online market structure. Martin-Rozumilowicz, supra, at 8-9. Many social media and online platforms have no membership fee and get their revenues from selling ad space and user data. Id. The market structure thus incentivizes clickbait, and the way ads are shown on these platforms allow for microtargeting, which is in turn protected by the anonymity provided by ad policies and lack of regulation. Id. Add to this the fact that disinformation is “diffused significantly farther, faster, deeper and more broadly than the truth in all categories of information,” the use of social media to broadly disseminate false and misleading information is rampant. Id. at 8. Truth, it turns out, takes “about six times as long as falsehood to reach 1,500 people,” and falsehoods are “70% more likely to be retweeted than truth.” Id. Thus, “with algorithms distorting the content people see,” perceptions and actions of a group can be manipulated. Id.
[44] Jaron Lanier, Ten Arguments for Deleting Your Social Media Accounts Right Now e7-11 (2018) (Lanier argues that social media has intentionally rendered its users addicted to social media and that this leads to profound manipulation of users of social media).
See also Ja’han Jones, Jaron Lanier Helped Create Social Media, And Now He’s Begging You To Leave It Behind, Huffington Post (Dec. 12, 2018), https://www.huffpost.com/entry/jaron-lanier-delete-social-media_n_5c0ebb5ae4b08bcb27eb661e?guccounter=1&guce_referrer=aHR0cHM6Ly9kdWNrZHVja2dvLmNvbS8&guce_referrer_sig=AQAAABAQ-Kzxt9NqaiG3wCauMdQQwjBHffrB87db1AHvuOOkhS7pBiRL52Nz_90mUTgomZAeQQKE6Pdue57LmxTalEzWfEUdHlrMLSN3HCR7jZockdXlnLA_7h6eWtqebv8yB8vCpgPs3rqW_8PmhAbT3kJF_Suwybb9hjGoLcrqB5ao (Lanier again argues that users are addicted to social media and this is a key function to manipulation of users.).
[45] Martin-Rozumilowicz, supra note 44, at 9 (“The precision with which individuals and groups can be targeted [for mis/disinformation] allows bad actors to exploit ideological and cultural divisions and raises additional concerns over hate speech and discrimination, such as the recent news that Russian attempts to influence the 2016 U.S. election particularly targeted African-American voters.”).
[46] Channel 4 News Investigations Team, Revealed: Trump campaign strategy to deter millions of Black Americans from voting in 2016, Channel 4 News (Sep. 28, 2020), https://www.channel4.com/news/revealed-trump-campaign-strategy-to-deter-millions-of-black-americans-from-voting-in-2016.
[47] Id.
[48] Id.
[49] Id.
[50] Report of the Select Committee on Intelligence, United States Senate, on Russian Active Measures Campaign and Interference in the 2016 U.S. Elections, Volume 2: Russia’s Use of Social Media with Additional Views 32-62 (2020), https://www.intelligence.senate.gov/sites/default/files/documents/Report_Volume2.pdf.
[51] Id. at 40.
[52] See e.g., Joss Fongjoss, What voter suppression looks like online – Black voters are targeted on social media, too, Vox (Sep. 30, 2020), https://www.vox.com/videos/2020/9/30/21495386/digital-voter-suppression-russian-social-media.
[53] Drew DeSilver, Among democracies, U.S. stands out in how it chooses its head of state, Pew Research Ctr. (Nov. 22, 2016), https://www.pewresearch.org/fact-tank/2016/11/22/among-democracies-u-s-stands-out-in-how-it-chooses-its-head-of-state/.
[54] Howland, supra note 18.
[55] U.S. Const., art. V.
[56] Id.
[57] Tom Murse, Proposed Amendments to the U.S. Constitution, ThoughtCo (Jul. 3, 2019), https://www.thoughtco.com/proposed-amendments-4164385.
[58] Brenda Erickson, Amending the U.S. Constitution: LegisBrief 25(30), Nat’l Conference of State Legislatures (2017), https://www.ncsl.org/research/about-state-legislatures/amending-the-u-s-constitution.aspx.
[59] G.A. Res. 2200A (XXI), supra note 10.
[60] In addition to U.S. citizens living in a U.S. territory, a U.S. citizen living abroad who does not maintain residence in a State, could vote in this at-large voting.
[61] Harold Edward Stassen, Man was Meant to be Free: Selected Statements, 1940-1951 (Amos J. Peaslee ed. 1951) (1951). See also Harold E. Stassen, Address at University of Minnesota: American World Policy for Peace and Progress (Mar. 3, 1945), www2.mnhs.org/library/findaids/00202/pdfa/00202-00090-2.pdf.