Texas Attorney General Threatens Prosecution for U.N. Election Observers In Lone Star State

October 24th, 2012

Only in Texas. Attorney General Greg Abbott sent a letter to the Organization for Security and Co-Operation in Europe, threatening that that their election monitors may be subject to prosecution if they violate Texas laws.

After noting that the OSCE has met with groups affiliated with ACORN, and that the OSCE opposes voter ID laws, Abbot lays down the gauntlet.

If OSCE members want to learn more about our election processes so they can improve their own democratic systems, we welcome the opportunity to discuss the measures Texas has implemented to protect the integrity of elections. However, groups and individuals from outside the United States are not allowed to influence or interfere with the election process in Texas. This State has robust election laws that were carefully crafted to protect the integrity of our election system. All persons—including persons connected with OSCE—are required to comply with these laws.

Elections and election observation are regulated by state law. The Texas Election Code governs anyone who participates in Texas elections—including representatives of the OSCE. The OSCE’s representatives are not authorized by Texas law to enter a polling place. It may be a criminal offense for OSCE’s representatives to maintain a presence within 100 feet of a polling place’s entrance. Failure to comply with these requirements could subject the OSCE’s representatives to criminal prosecution for violating state law.

The OSCE responded by sending a letter to Secretary of State Clinton (which she no doubt calmly read on her blackberry through big sun glasses) asserting that the threat “is at odds with the established good co-operation between OSCE/ODIHR observers and state authorities across the United States, including in Texas, Lenarčič said, adding that it is also contrary to the country’s obligations as an OSCE participating State.”

“The threat of criminal sanctions against OSCE/ODIHR observers is unacceptable,” Lenarčič said. “The United States, like all countries in the OSCE, has an obligation to invite ODIHR observers to observe its elections.”

The ODIHR Director also stressed that any concerns or reports that the election observers intended to influence or interfere with the election process were groundless. He underlined that OSCE/ODIHR election observers adhere to all national laws and regulations, as well as a strict code of conduct.

Are election officials immune from local criminal laws in ways that an ambassador may be? Does the relevant treaty spell out immunity? Could Congress even abrogate state criminal laws for foreign officials? This raises a nice Missouri v. Holland issue–could Congress violate the 10th Amendment by abrogating state criminal laws for the purposes of giving full effect to an executed treaty? In fact the time-place-manner clause of the Constitution specifically reserves to the states the manner in which elections are held. Would Congress forcing Texas to allow these monitors infringe on the time-place-manner clause of Article I? This is almost like a reverse Term Limits v. Thornton.

Texas is no stranger to adopting positions that flout the President’s foreign policy decision–Republican or Democrat. See Medellin v. Texas where the Supreme Court said President Bush could not compel Texas to not execute a convicted murderer under a non-self-executing treaty.