By former Idaho Attorneys General Jim Jones, Dave Leroy and Tony Park
Raul Labrador recently told columnist Chuck Malloy he would have joined a Texas lawsuit in the U.S. Supreme Court that challenged the presidential vote in a number of other states. Attorney General Lawrence Wasden wisely declined to join the suit, which was doomed from the start. Worse yet, the suit asked for a decision that would have opened up every state to legal attack by other states on a wide variety of issues.
Ever since the founding of the United States, elections have primarily been the business of the individual states. It is a fundamental part of our federal system. The system may not be perfect but it has served us well. Idahoans should strongly resist the idea that other states can challenge our election laws or, for that matter, any of our other laws.
The ill-fated Texas lawsuit asked the Supreme Court to overturn the election laws of several other states–a severe violation of our federalist system. The Republican-leaning Supreme Court unceremoniously tossed the suit in just four days. Had it ruled like Texas wanted, Idaho could have been opened up to lawsuits by other states on any number of grounds.
Several times last year, the Washington Governor complained that Idaho’s lax pandemic response had resulted in a flood of Idaho patients into Washington hospitals. Labrador’s position would have allowed Washington to attack Idaho’s pandemic response in federal court. Or, say some blue states claimed Idaho’s loose gun laws impacted their states in some fashion, we might be defending those laws in a federal court in a blue state.
If Texas were allowed to attack Pennsylvania’s election laws, other states could challenge Idaho’s laws on predator control, water management, educational content, vaccination policy, you name it.
Idaho’s level-headed Attorney General, Lawrence Wasden, understood the ultimate danger the Texas suit posed to federalism. He distinguished himself by refusing to join the stampede, observing that “the legally correct decision may not be the politically convenient decision.” He continued: “As Attorney General, 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 other states.” Much like the kid who pointed out that the emperor was unclothed, Wasden stated the unvarnished truth about the Texas Attorney General’s publicity stunt, even though it was not the politically popular thing to do.
Idaho’s Senators, Jim Risch and Mike Crapo, went a step further, both voting on January 6 to uphold Biden’s election victory. Crapo said that voting against certification of the election “would set a dangerous precedent I cannot support.” Noting that he’d taken an oath to support the Constitution, he continued: “To undercut this system would inevitably lead to federalizing our election process….That is why I will not join efforts to have Congress reject validly certified Electoral College votes.” Like the Senators, our Attorney General swore an oath to stand up for the rule of law, even if it is not politically convenient or popular.
Labrador told Malloy he would be an “activist” attorney general who would help our ideologically-driven legislators achieve their goals. When extremist legislators work to dismantle Idaho’s public education system, they should not have the Attorney General’s help. The Attorney General is required to stand up for the Idaho Constitution, not to serve as lackey for trouble-making legislators. Our Attorney General is honor bound to fulfill the check and balance role envisioned in the Idaho Constitution.
Some voters may not understand that the Attorney General is obligated to give governmental officials honest, straight-forward legal advice, just like they expect from their family lawyer. They might not always like the advice, but it is necessary to give honest advice when the client is headed for trouble. As a matter of fact, Lawrence Wasden has been a tremendous source of assistance to lawmakers who will listen to his advice. You can’t help those who refuse to listen.
The Legislature could have saved millions of dollars in court-ordered attorney fees over the years by heeding Wasden’s sound advice. A case in point is the third of a million dollars the State dished out to private attorneys to defend the lawsuit that successfully challenged the bill to deprive citizens of their constitutional initiative and referendum rights. Honesty is the best policy.
Jim Jones served as Idaho Attorney General from 1983 to 1991. Dave Leroy was Attorney General from 1979 to 1983. Tony Park was Attorney General from 1971 to 1975.