The Supreme Court Building in Washington, DC. Photo taken by Tim Sackton (CC-By-SA 2.0).
The Supreme Court of the United States Building
Photo credit: Tim Sackton (CC-By-SA 2.0)

When did Republicans, especially conservative Republicans, stop believing in federalism? This week we saw 18 Republican state attorneys general and over 100 Republican members of Congress throw federalism under the Trump train as some form of sacrifice, a last-ditch effort, to alter the outcome of the presidential election.

The Supreme Court, thankfully, ruled on Friday evening that Texas does not have standing.

“Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections,” the wrote.

Justice Samuel Alito joined by Justice Thomas Clarence added they would not have ruled that way.

“In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction,” he wrote. “I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue.”

Not much of a dissent.

The Supreme Court was right to rule that way. Texas doesn’t have standing to sue.

The complaint that Texas Attorney General Ken Paxton filed with the Supreme Court in Texas v. Pennsylvania, et. al. is an affront to federalism. In essence, this lawsuit is about one state challenging four other states’ election laws and the administration of those laws because they did not like the outcome of the presidential election in those states.

Is there any question had President Donald Trump prevailed in Georgia, Michigan, Pennsylvania, and Wisconsin with the same changes made to address the COVID-19 pandemic would this lawsuit exist? Of course not.

A federalist system recognizes dual sovereignty between the federal government and the states, and that each state is equally sovereign. Our founders recognized that there would be disputes between states that could not be resolved through any other means than by the Supreme Court.

Article III, Section 2 of the Constitution does give the Supreme Court original jurisdiction to resolve “Controversies between two or more States.”

Alexander Hamilton in Federalist 80, gives the historical picture the framers had in mind when they gave the Supreme Court jurisdiction over controversies between states.

“History gives us a horrid picture of the dissensions and private wars which distracted and desolated Germany prior to the institution of the Imperial Chamber by Maximilian, towards the close of the fifteenth century; and informs us, at the same time, of the vast influence of that institution in appeasing the disorders and establishing the tranquillity of the empire. This was a court invested with authority to decide finally all differences among the members of the Germanic body,” he wrote.

“A method of terminating territorial disputes between the States, under the authority of the federal head, was not unattended to, even in the imperfect system by which they have been hitherto held together. But there are many other sources, besides interfering claims of boundary, from which bickerings and animosities may spring up among the members of the Union. To some of these we have been witnesses in the course of our past experience. It will readily be conjectured that I allude to the fraudulent laws which have been passed in too many of the States. And though the proposed Constitution establishes particular guards against the repetition of those instances which have heretofore made their appearance, yet it is warrantable to apprehend that the spirit which produced them will assume new shapes, that could not be foreseen nor specifically provided against. Whatever practices may have a tendency to disturb the harmony between the States, are proper objects of federal superintendence and control,” Hamilton added.

So what are we talking about here? Historically, things like land disputes, water rights, perhaps violating an interstate compact, or addressing a state tax targeting a border state’s citizen. Things of that nature, not a state suing another state because it doesn’t like how that state exercised its constitutional role in administering an election.

Texas can not rightly claim it is an injured party. Georgia in its reply to Texas’ complaint wrote, “Texas tries to assert claims that are at least three steps removed from the arguably proper plaintiff: Texas seeks to assert its citizens‚Äô rights to representation, which seek to assert Georgia‚Äôs citizens‚Äô voting rights, which really seek to assert the Georgia Legislature‚Äôs rights to have its plenary authority over voting procedures followed.”

What a remarkable sentence. There is not any direct state to state controversy demonstrated in Texas’ complaint to warrant the Supreme Court granting their motion.

Had this lawsuit prevailed, we could have expected a deluge of states filing lawsuits against other states. Would it be ok for New York to sue Iowa because felons don’t automatically get their voting rights back under Iowa law? No.

Any state could nit pick another state’s election laws (or based on the precedent this would have set had it been successful) any law.

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