Can a state ban United Nations representatives from observing its elections?

Subject

Opinion No. 13-25, Prohibiting Observation of Elections by United Nations Representatives, March 20, 2013

Plain-English summary

After Organization for Security and Co-operation in Europe (OSCE) observers attended the 2012 U.S. elections at the request of the U.S. State Department, several state legislatures introduced bills to bar international election observers. HB589 in Tennessee was one of them. It would have amended the Tennessee Election Code to provide that "[r]epresentatives of the United Nations shall not observe elections in the state" and would have made a violation a Class C misdemeanor.

The AG concluded HB589 was constitutionally suspect under the Supremacy Clause. Foreign affairs is an area where the federal government has plenary authority. The U.S. is a UN member state by treaty (59 Stat. 1033 (1945)). Congress has authorized the President to appoint a UN ambassador and to pay the U.S. share of UN operating expenses (22 U.S.C. §§ 287, 287e). The federal Executive Branch has decided as a matter of foreign affairs policy to participate in international reciprocal election-observation programs.

Zschernig v. Miller, 389 U.S. 429 (1968), and American Insurance Ass'n v. Garamendi, 539 U.S. 396 (2003), hold that state laws "must give way if they impair the effective exercise of the Nation's foreign policy." HB589 would have done exactly that. Even though UN observers had not yet sought to observe Tennessee elections, a state criminalization of UN observation would have intruded on the federal government's authority to set foreign affairs policy.

A second, independent ground also defeated HB589. Even if a UN representative had arrived at a Tennessee polling place, federal law would have immunized them from prosecution. The Convention on Privileges and Immunities of the United Nations, art. V, § 18, makes UN officials "immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity." The International Organization Immunities Act, 22 U.S.C. § 288d(b), gives similar immunity to officers and employees of international organizations. Tennessee could not constitutionally have charged a UN official with a Class C misdemeanor for performing the official duty of observing an election.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The foreign affairs preemption framework in Zschernig and Garamendi remains the controlling federal law. Tennessee's election code has been amended since 2013, and any current bill targeting international election observers should be checked against the current state code and recent Supremacy Clause decisions. The UN Convention and the IOIA are unchanged in substance.

Background and statutory framework

The OSCE Office for Democratic Institutions and Human Rights began observing U.S. federal elections in 2002 at the request of the U.S. government. The U.S. is one of 56 OSCE member states, and the Copenhagen Document signed in 1990 commits members to allow each other to observe their elections. OSCE policy is to comply with national, state, and local laws during observations.

UN-affiliated observation is less common in the U.S. but theoretically possible. The U.S. ratified the Convention on Privileges and Immunities of the United Nations in 1970 (with reservations not relevant here). The Convention and the IOIA together give UN officials immunity for official acts.

Tennessee election code framework before HB589. Tenn. Code Ann. § 2-7-103 governs who may be present in a polling place during an election. Election officials, voters, persons assisting voters, the press, poll watchers appointed under § 2-7-104, others bearing written authorization from the county election commission, and children accompanying parents or guardians are permitted. § 2-7-104 governs poll watcher appointments by political parties and citizen organizations.

HB589. Would have added a new § 2-1-119 stating: "Representatives of the United Nations shall not observe elections in the state." Violation: Class C misdemeanor.

The foreign affairs preemption framework.

• The Supremacy Clause (U.S. Const. art. VI, cl. 2) makes federal law and federal treaties the supreme law of the land.
• The Elections Clause (U.S. Const. art. I, § 4, cl. 1) gives states the responsibility for time, place, and manner of federal elections, but state discretion cannot conflict with federal law (Foster v. Love, 522 U.S. 67 (1997)).
• Zschernig v. Miller invalidated an Oregon probate statute that limited inheritance by nonresident aliens, on the ground that the statute intruded into the federal field of foreign affairs.
• Hines v. Davidowitz: "federal power in the field affecting foreign relations [must] be left entirely free from local interference."
• Garamendi synthesized the doctrine. State laws "must give way if they impair the effective exercise of the Nation's foreign policy."
• United States v. Pink and United States v. Belmont both held that "complete power over international affairs is in the national government."

The immunities framework.

• UN Convention art. V, § 18(a): UN officials "immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity."
• UN Convention art. V, § 20: Only the Secretary General can waive an individual's immunity.
• International Organization Immunities Act, 22 U.S.C. § 288d(b): officers and employees of international organizations are immune from suit and legal process for acts performed in their official capacity within their functions.

The AG noted that the opinion was a facial-challenge analysis and assumed UN representatives would have the requisite federal authority to observe elections. As-applied questions would have depended on the particular factual situation.

Common questions

Why is election administration a "foreign affairs" question at all?

Election administration is normally a state matter. But once the federal government decides as a matter of foreign affairs policy to participate in reciprocal international observation programs, a state law that bars international observers from those state elections impairs the federal foreign-affairs decision. The state law isn't regulating elections in the abstract; it's blocking a foreign policy initiative the federal government has chosen to undertake.

Could Tennessee have banned UN observers from observing only state and local elections, not federal ones?

Probably still no. Zschernig invalidated a state probate law, not an election law. The foreign affairs preemption doctrine isn't limited to federal-election contexts. Once the law has "more than incidental effect on foreign affairs," it can be preempted. A state law specifically targeting UN representatives would have that effect.

What about poll watcher rules generally? Can Tennessee restrict who can be in a polling place?

Yes. The Tennessee election code has always restricted polling-place presence to a defined list of persons (election officials, voters, the press, party-appointed watchers, etc.). The constitutional problem with HB589 was not that it restricted polling-place access; it was that it specifically targeted UN representatives, which is a foreign-affairs distinction the federal government has reserved to itself.

Does this opinion mean OSCE observers were welcome?

The opinion didn't decide that. It assumed UN representatives would have federal authority to observe, and didn't address OSCE specifically. But because OSCE observations have been actively requested by the U.S. State Department since 2002 and OSCE policy is to comply with state and local law, a state law that singled out OSCE observers would likely have raised similar Supremacy Clause issues.

What's the diplomatic immunity angle?

Independent of the preemption issue, UN officials acting in their official capacity are immune from local prosecution under the UN Convention and the IOIA. Even if HB589 had been constitutional, a UN representative who observed a Tennessee election could not have been prosecuted under it, because federal law (which is treaty law in the case of the UN Convention) shields them.

Citations

Tenn. Code Ann. §§ 2-1-101 to -118 (Tennessee Election Code); §§ 2-7-103, -104 (polling-place rules). Federal statutes: 22 U.S.C. §§ 287, 287e (UN participation); §§ 288 to 288l, especially § 288d(b) (IOIA); §§ 3002, 3003, 3005 (Helsinki). UN Convention on Privileges and Immunities, art. V, §§ 18, 20, Feb. 13, 1946, 21 U.S.T. 1418. Cases: Foster v. Love, 522 U.S. 67 (1997); Zschernig v. Miller, 389 U.S. 429 (1968); Hines v. Davidowitz, 312 U.S. 52 (1941); American Insurance Ass'n v. Garamendi, 539 U.S. 396 (2003); United States v. Belmont, 301 U.S. 324 (1937); United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936); United States v. Pink, 315 U.S. 203 (1942); Dames & Moore v. Regan, 453 U.S. 654 (1981); Medellin v. Texas, 552 U.S. 491 (2009); Waters v. Farr, 291 S.W.3d 873 (Tenn. 2009).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-025.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

March 20, 2013

Opinion No. 13-25

Prohibiting Observation of Elections by United Nations Representatives

QUESTION

Does House Bill 589/Senate Bill 721 of the 108th Tennessee General Assembly, 1st Sess. (2013) (hereinafter "HB589"), which amends the Tennessee Election Code to provide that "[r]epresentatives of the United Nations shall not observe elections in the state" and that a violation of this prohibition is a Class C misdemeanor, violate the United States Constitution?

OPINION

HB589 is susceptible to a facial constitutional challenge as violating the Supremacy Clause of the United States Constitution by impairing the exercise of the federal government's authority to act in the area of foreign affairs. The federal government as part of its foreign affairs policy has decided to participate in the United Nations and has chosen to participate in reciprocal international programs regarding the observation of elections in participating countries by representatives of other participating countries. The Supremacy Clause precludes a State from interfering with the United States government's exercise of its foreign affairs policy under federal law. Moreover, pursuant to the Supremacy Clause, the United Nations and its officials, who may be observing elections within the United States as part of their official duties, would be immune pursuant to federal law from prosecution under Tennessee law for an alleged violation of HB589's prohibition.

ANALYSIS

HB589 would amend the general provisions of the Tennessee Election Code, codified at Tenn. Code Ann. §§ 2-1-101 to -118, to create a new section at Tenn. Code Ann. § 2-1-119 to provide that "[r]epresentatives of the United Nations shall not observe elections in the state."

The Election Clause of the United States Constitution gives states the responsibility for establishing the time, place, and manner of holding congressional elections. However, a state's discretion regarding the manner of holding such federal elections is limited in that the state system cannot directly conflict with federal law. U.S. Const., art. 1, § 4 cl. 1. See also Foster v. Love, 522 U.S. 67, 68 (1997).

The federal government has made the decision within its authority over foreign affairs to participate in the United Nations. See, e.g., 22 U.S.C. § 287 (authorizing the President to appoint an Ambassador to represent the United States, as the President may direct, regarding the United States' participation in the United Nations); 22 U.S.C. § 287e (authorizing the payment of federal funds for payment of the United States' share of United Nations operating expenses).

Historically, it does not appear that representatives of the United Nations have observed elections in Tennessee. Rather since 2004 (initially at the request of President George W. Bush), the federal Executive Branch has requested international representatives of the Organization for Security and Co-operation in Europe ("OSCE") to observe some federal elections within the United States. The United States is a member of this organization, which includes 56 participating nations from Europe, Central Asia and North America. See generally 22 U.S.C. §§ 3002, 3003, & 3005. OSCE members, including the United States, committed since 1990 to hold free and democratic elections and to allow one another to observe their elections. See 1990 OSCE Copenhagen Document, ¶ 8. The OSCE's policy is to comply with national, state and local laws when conducting its election observations. Id.

The Supremacy Clause of the United States Constitution provides: "This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land." U.S. Const. art. VI, cl. 2. The United States Supreme Court has found that this provision entrusts the field of foreign affairs and international relations solely to the federal government — the President and Congress. Zschernig v. Miller, 389 U.S. 429, 432 (1968) (citing Hines v. Davidowitz, 312 U.S. 52, 63 (1941)) (invalidating a state probate statute prohibiting inheritance by certain nonresident aliens as an unconstitutional intrusion by a state into the field of foreign affairs).

As the United States Supreme Court has explained in American Insurance Ass'n v. Garamendi, 539 U.S. 396, 417-19 (2003), the Zschernig majority relied on statements in a number of previous cases open to the reading that state action with more than incidental effect on foreign affairs is preempted, even absent any affirmative federal activity in the subject area of the state law, and hence without any showing of conflict. Both the Zschernig majority and concurring Justices basically agreed: state laws "must give way if they impair the effective exercise of the Nation's foreign policy."

The federal government has made the foreign policy decision to participate in the United Nations, has decided to participate in international reciprocal programs for the observing of elections and has agreed that international parties may observe federal elections in the United States. Therefore, a state law prohibiting representatives of the United Nations from observing elections in Tennessee is constitutionally suspect under the Supremacy Clause. Even though United Nations representatives are not currently seeking to observe Tennessee elections, the prohibition in HB589 would intrude upon or interfere with the conduct of foreign relations by the federal government.

Moreover, pursuant to federal law and the Supremacy Clause, the United Nations and its official representatives would have immunity from prosecution for a violation of HB589. United Nations officials are granted immunity from prosecution pursuant to Article V, Section 18 of the Convention on Privileges and Immunities of the United Nations (the "U.N. Convention"), Feb. 13, 1946, 21 U.S.T. 1418 (the United States, with certain conditions not relevant to this opinion, agreed to participate in this Convention on April 29, 1970). This convention states in relevant part that United Nations officials are "immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity." Id. art. V, § 18(a). Section 20 of the Convention provides that: "Privileges and immunities," such as immunity from prosecution, "are granted to officials in the interests of the United Nations, and not for the personal benefit of the individuals themselves." Id. art. V, § 20. Only the Secretary General may waive the immunity of a United Nations official. Id. Moreover, the International Organization Immunities Act ("IOIA"), 59 Stat. 669, 22 U.S.C. §§ 288 to 288l, expressly applies to "officers and employees of [international] organizations," and states that such individuals "shall be immune from suit and legal process relating to acts performed by them in their official capacity and falling within their functions as . . . officers, or employees except insofar as such immunity may be waived by the . . . international organization concerned." Id. § 288d(b). Accordingly, the United Nations or its officials who may be observing elections in the performance of their official duties, could not constitutionally be charged with a Class C misdemeanor.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

STEVEN A. HART
Special Counsel

Requested by:
Honorable Jon Lundberg
State Representative
Suite 20, Legislative Plaza
Nashville, TN 37243-0231