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OAS Plan to Alter Haiti Vote Fails Bush v. Gore Standard of Equal Protection

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The Organization of American States' "Expert Verification Mission" is pushing to alter the preliminary results of Haiti's disputed November 28, 2010, presidential election in a way that appears to violate the equal protection standards that led the U.S. Supreme Court to stop the Florida recount in 2000.

Of course, U.S. Supreme Court precedent isn't binding on the OAS, or on Haiti, or on the policy of the U.S. government on the Haitian elections.

However, the U.S. is a very influential member of the OAS, and the U.S. makes its own determination to go along with the OAS recommendations or not. And if the U.S. adopts a policy with respect to the disputed Haitian election that violates the principle that animated the U.S. Supreme Court's action in 2000, U.S. officials should, at the very least, be asked to comment on the contradiction.

The OAS team is recommending that the preliminary results be altered in such a way that the candidates in second and third place in the preliminary results switch places. The result would be that Michel Martelly, not Jude Celestin, would advance to a run-off.

The way that the OAS team reaches this conclusion is by throwing out tally sheets that do not meet certain criteria. However, the OAS team is not proposing to throw out all tally sheets that do not meet these criteria. It is only proposing to throw out tally sheets that don't meet these criteria that belong to a sample that the OAS reviewed.

Thus, what the OAS team is proposing to do violates the principle of equal protection. Because if you were a Haitian voter whose vote belonged to the sample that the OAS team looked at, your vote will be treated differently -- and be more likely to be thrown out -- than if your vote did not belong to that sample. This was the grounds on which the U.S. Supreme Court stopped the Florida recount: that different standards were being applied to the counting of different votes.

Furthermore, in principle, the three recommendations of the OAS team contradict each other. In its second and third recommendations, the OAS team urges that the same criteria be used to exclude tally sheets in the second round, and that this standard should be applied uniformly. But according to its first recommendation, this standard should only be applied in the first round to the sample that the OAS team reviewed.

Doesn't this seem fishy? Wouldn't it be better to scrap the election and start over with a new electoral council that allows all Haitians to participate in the election without discrimination?

Here is a section of the OAS team's draft report that demonstrates how the principle of equal protection would be violated by the OAS team's recommendations, and how in principle the recommendations contradict each other:

After careful statistical analysis of a national random sample of the vote count, the Expert Mission determined that as the recorded voter participation rose above the national average, the probability of serious irregularities increased. Thus, using the criteria extracted from the electoral law, the Mission reviewed and evaluated every single Procès-Verbal with a participation rate of 50 percent or greater and where a single candidate received 150 votes or more. In addition, the 118 PVs with a participation rate of more than 100 percent were reviewed in their entirety irrespective of the number of votes received by the winning candidate.

1. The Expert Mission found 234 of PVs did not meet the four criteria previously mentioned. Based on these findings, the Expert Mission recommends that these Procès-Verbaux... be excluded from the final vote tally. Should this recommendation be implemented, the position of the candidate in third place would change to second. The candidate now in second place would move to third.

2. For the second round, the Tabulation Center of the CEP should continue to use these three criteria to determine whether or not a PV should be included in the final vote tally.

3. Lastly, the Expert Mission recommends that complete standards be drafted to determine when a Procès-Verbal should be reviewed and under what conditions its results should be excluded. These standards should conform to the electoral law and be applied consistently.