While many Idaho politicians announced support Thursday for the Texas Attorney General’s lawsuit challenging election processes in Pennsylvania, Georgia, Wisconsin and Michigan, Idaho Attorney General Lawrence Wasden was not among them.
The Texas attorney general, a Republican, filed the lawsuit with the high court under what is known as “original jurisdiction,” which states typically use to resolve border disputes or water rights issues.
“Texas is using its right under the Constitution to go to the Supreme Court directly in a highly unusual way,” said Professor Anthony Johnstone of the University of Montana’s Blewett School of Law.
Johnstone served as solicitor general for Montana until 2011 — second in command at the state attorney general’s office. He said potential consequences of the high court even hearing this lawsuit could go beyond the recent election.
“If Idaho doesn't want California telling it how to run its elections or other affairs, it shouldn't be supporting Texas's attempts to tell Georgia how to run its affairs,” he said. “That's why, in many ways, this runs against the principles of federalism, conservatism [and] judicial restraint that state attorneys general have generally stood for.”
Johnstone noted that Texas AG Ken Paxton’s solicitor general — the same position the professor held previously in Montana — did not sign the complaint. The absence suggests Paxton may not have run the suit through a typical staff review process. The Supreme Court will notice that, too, Johnstone said.
Idaho is not supporting the lawsuit filed Monday, but 18 state’s Republican Attorneys General have signed amicus briefs in support of the lawsuit. Idaho Representatives Mike Simpson and Russ Fulcher joined more than 100 fellow representatives in support, and Idaho Lt. Governor Janice McGeachin signed a support brief as well, hers penned by lawyers including University of Idaho Law Professor Richard Seamon, and co-signed by state representatives and senators from Idaho, Alaska and Arizona.
The Post-Register reported Republican leadership in the Idaho statehouse sent Wasden a letter this week asking his office to “research joining” in support.
One day after initially issuing a ‘no comment’ on the matter, Attorney General Lawrence Wasden on Thursday officially declined to add his support.
“This decision is necessary to protect Idaho’s sovereignty,” Wasden wrote in a statement. “I have significant concerns about supporting a legal argument that could result in other states litigating against legal decisions made by Idaho’s legislature and governor. Idaho is a sovereign state and should be free to govern itself without interference from any other state. Likewise, Idaho should respect the sovereignty of its sister states.”
Wasden wrote that his duty is to protect Idaho's legal interests. "As is sometimes the case, the legally correct decision may not be the politically convenient decision. But my responsibility is to the State of Idaho and the rule of law."
Johnstone said the lawsuit wouldn’t so much be a precedent about the legitimacy of Joe Biden's election, “as it is a precedent for enabling the U.S. Supreme Court to second-guess the decisions of state legislatures and state officials, including state courts who are charged with implementing state law as required by the U.S. Constitution in presidential elections.”
Wasden also now finds himself at odds with Idaho Governor Brad Little, who late Thursday announced he would be signing a friend of the court brief supporting the lawsuit.
Johnstone called Wasden’s position meaningful, and referenced him as a dean of sorts among the 25 Republican attorneys general. The two worked together previously on legal matters involving Montana and Idaho.
“I think he can be said here to be taking the long view,” Johnstone said, “and actually representing his state against the possibility that a whole bunch of other states will bring these claims when the worm turns.”
In the past, the U.S. Supreme Court has been reticent to hear cases between states over legislation. In 2014, Oklahoma and Nebraska sued the state of Colorado to block its legalization of recreational marijuana. The court in 2016 dismissed the lawsuit without providing a reason, with Justices Samual Alito and Clarence Thomas dissenting.
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