Blog - May 4, 2018

Empowered by a new electoral law, last weekend registered Lebanese expatriates residing in the United States flocked to authorized polling centers located on U.S. soil to cast their votes in Lebanon’s parliamentary elections. However, Hezbollah’s presence on many of these ballots marred this otherwise welcome enfranchisement of the Lebanese-American diaspora. In fact, voting for Hezbollah arguably violates the U.S. ban on providing “personnel” to a foreign terrorist organization (FTO).  Anticipating legal complications, Beirut’s Washington D.C. Embassy used an exception in the material support statute, and reassured its nationals that the U.S. State Department had greenlighted the voting process, implying that casting a ballot for Hezbollah would not constitute material support.

 I. Voting for Hezbollah As Material Support

The State Department designated Hezbollah – both its military and political “wings” – as an FTO on October 8, 1997. As a result, 18 U.S.C. §2339Bprohibits knowingly either actually providing it with any of the four categories of material support – “training,” “expert advice or assistance,” “services,” and “personnel” –  or attempting or conspiring to do so.  In Holder v. Humanitarian Law Project, the Supreme Court explained  that “pure political speech” or “independent advocacy” in favor of a particular FTO – even “mere membership” – did not run afoul of the material support statutes.

A.     Personnel

However, in the case of Hezbollah, how it participates in Lebanese politics causes voting for the group to cross the line from permissible independent advocacy or association into providing the group with personnel, which §233B(h) narrowly defines as “1 or more individuals…to work [emphasis own] under that terrorist organization’s direction or control.”  Hezbollah’s parliamentary candidates readily fit into this description.

B.     Voting for Hezbollah Would Provide it With One or More Individuals

Hezbollah’s parliamentary candidates are selected by the Shura Council – the group’s supreme body which is headed by Secretary General Hassan Nasrallah, and which also controls the group’s Jihad Council and military activities – rather than through independent primaries.

Only once elected do these nominees become part of Hezbollah’s Parliamentary Council, the body responsible for the group’s parliamentary activities, and which is also directly subordinate to the Shura Council. Therefore, the size of the Parliamentary Council and its membership directly depends on the number of votes the group receives in the elections. In other words, votes increase the size of Hezbollah’s Parliamentary Council providing – or at least attempting to provide – the group with “1 or more individuals.”

 C.     These Individuals Would Work Under Hezbollah’s Direction and Control

Hezbollah does not give its MPs any measure of independence once they take office. They remain bound by its Shura’s decisions, and all of their political views, choices, and parliamentary votes must reflect the stances of Hezbollah and its supreme Council, not their own opinions. In other words, they “work” under the Shura Council’s “direction or control.”

It is this subservience to the Shura Council that makes voting for these candidates problematic, and as a result they do not qualify for §2339B(h)’s exemption for “individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives.” Arguably, had these parliamentarians been members of an independent (non-FTO) party, even if it shared Hezbollah’s ideology and goals, then voting for them would be permissible, since support must go directly to an FTO to constitute material support.

 D.    Providing Personnel for Hezbollah’s “Legitimate Activities” is Material Support

 It is immaterial under §2339B that voting for Hezbollah is meant to further an otherwise legitimate activity like parliamentary participation. The Supreme Court noted in Holder that the law doesn’t require “specific intent to further the organization’s terrorist activities,” for actions or certain types of speech to constitute a material support. To violate the material support prohibition, an individual need only provide something – even if what they provide is otherwise constitutionally protected speech –  to an organization with “knowledge about the organization’s connection to terrorism.”

II. Can Restricting Voting for Hezbollah Pass Constitutional Muster?

It may be jarring to think of voting on U.S. soil as “material support” for an FTO. After all, voting is the corner-stone of American democracy, and has been described by President Ronald Reagan as the “crown jewel of American liberties,” and by the U.S. Supreme Court as “sacred,” and “a fundamental political right…preservative of all rights.” Nonetheless, certain restrictions on the right to vote are entirely constitutional.

A.     The Status of Voting in the U.S. Constitution

The right to vote implicates First and Fourteenth amendment protections. However, voting  per se is not an explicitly guaranteed Constitutional right – only the right to be free of discriminatory disenfranchisement. The Supreme Court has also never conclusively decided whether voting is First Amendment-protected “speech” – requiring any restriction on it to pass the highest level of scrutiny – or “conduct”  deserving a lower standard of protection, but has leaned towards the latter.

B.     Congress Has the Power to Restrict Voting in Foreign Political Elections

On the Federal level, in Perez v. Brownell, the Court recognized Congress’ power to regulate voting by U.S. nationals in foreign political elections. Its reasoning – similar to Holder’s on prohibiting material support to terrorists – was that certain voting choices by U.S. citizens could complicate Washington’s foreign relations. Afroyim v. Rusk subsequently overturned Perez,  but only on the grounds that the way this power had been exercised –the Nationality Act of 1940, involuntarily stripping an individual of U.S. citizenship for voting in a foreign election – was excessive and unconstitutional. 

C.     States Can Impose Reasonable and Non-Discriminatory Voting Restrictions

The Court has also long recognized the power of the States to enact “substantial” – albeit “reasonable [and] non-discriminatory” – regulations and restrictions on voting. In Anderson v. Celebrezzethe Court held that such restrictions would be normally subjected to an intermediate level of scrutiny – whereby the Court weighs the “character and magnitude of the asserted injury,” to Constitutionally protected rights incidental to voting against the “legitimacy and strength” of each of the State’s “precise interests.”

Though the Court in Anderson admitted that voting restrictions – like material support in Holder – implicated both the right to associate to advance political beliefs, it nonetheless held that a state’s “important regulatory interests,” were generally sufficient to justify routine restrictions on First and Fourteenth Amendment rights. In subsequent cases – including Norman v. Reed and Burdick v. Takushi – the Court clarified that “severe” restrictions, however, must be “narrowly drawn” and justified by a “state interest of compelling importance [emphasis own.]”

Prohibiting voting for Hezbollah is neither unreasonable nor discriminatory. It is not targeting Lebanese-Americans – or Shiites – as a class based on their national origin or religious affiliation. They are free to express their political beliefs as they see fit, and may even vote for individuals advancing Hezbollah’s ideology and goals, so long as they are not under its direction or control. What would be prohibited, by contrast, is for them or anyone else to carry out an “act of giving material support” to an FTO. 

D.    State Voting Laws Must Comply With The Material Support Statute

 Moreover, while States retain the power to regulate voting, they may not enact legislation at odds with federal law – either making compliance with compliance with both Federal and State law is impossible, or where the State law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” And in this case, Congress has decided to prohibit all forms of material support to terrorist organizations. If voting for an FTO does constitute material support, then States must also restrict voting for such groups in compliance with Federal Law.

E.     Hezbollah’s Political Activity Furthers its Terrorism, Justifying “Severe” Restrictions on Voting for the Group

However, prohibiting the act of voting as material support is admittedly a “severe” restriction on First and Fourteenth Amendment rights, and must therefore be justified by a “state interest of compelling importance.” In Holder,  the Court noted that the Plaintiffs’ otherwise lawful rights of free speech and association – the same rights implicated by voting restrictions – were being limited by the government’s prohibition on providing material support. Nonetheless, the Court held that the “Government’s interest in combatting terrorism is an urgent objective of the highest order,” justifying even substantial restrictions on otherwise permissible First and Fourteenth Amendment-protected speech and associational rights, if such activity constitutes material support.

 Pursuant to the Holder ruling, prohibiting U.S. nationals from voting for Hezbollah would be “necessary” to further that government interest. Hezbollah has answered Holder’s question “whether foreign terrorist organizations meaningfully segregate” their terrorism from their legitimate activities in the negative. The group openly rejects any distinction between its political and military wings. Furthermore, it has also declared that its non-military activities are subordinate to, and in service of, its so-called “Resistance.”

 Of particular relevance here, Hezbollah has openly and consistently declared that its political participation – including presence in parliament – is meant to serve, further, and protect its “resistance” and prevent the confiscation of its weapons. In fact, Nasrallah explicitly told his supporters in a recent elections speech, “protecting the resistance’s weapons is provided by political protection, and that [political] protection is provided by your votes.”

 Hezbollah’s parliamentary presence serves and furthers its terrorism in other ways as well. It grants it legitimacy which insulates it from international and financial sanctions. Aside from Russia and China – which recognize Hezbollah in its entirety as a legitimate organization –  several Western and European countries exempt its “political wing” from sanctions. This allows Hezbollah to carry out economic activities and raise funds globally which, due to the fungibility of money,  are used to bankroll its arms procurement and other terrorist activities.

 It also forces other Lebanese factions to treat the group as an equal, conceding to its demands and thus further entrenching its existence, and grants it a degree of legitimacy in the eyes of even hostile international actors.

 III. Conclusion – An Exception

The same statute which would otherwise prohibit voting for Hezbollah as material support creates an exception to its own rule. It prevents prosecution in connection with the term “personnel” if providing that form of material support or resource to an FTO was “approved by the Secretary of State with the concurrence of the Attorney General.” According to the Lebanese Embassy, this approval has been granted and voting for Hezbollah on U.S. soil is, as a result, not an actionable offense. However, the question remains worth asking: what interest did both our State Department and Attorney General feel they were furthering by allowing a terrorist group which threatens U.S. security and that of our allies to gain votes on American soil, even as Washington has long recognized Hezbollah’s threat to Lebanon’s stability as well?

David Daoud is a Research Analyst on Hezbollah at United on Nuclear Iran (UANI). He holds a Juris Doctorate with a Concentration on International Law from Suffolk University Law School.