The BDN Opinion section operates independently and does not set newsroom policies or contribute to reporting or editing articles elsewhere in the newspaper or on bangordailynews.com.
Gordon L. Weil formerly wrote for the Washington Post and other newspapers, served on the U.S. Senate and EU staffs, headed Maine state agencies and was a Harpswell selectman.
Suppose New Hampshire enacts a law allowing tiny lobsters to be fished, smaller than permitted in Maine. Because lobsters migrate, this made-up New Hampshire law could later reduce the Maine harvest.
Because one state can directly challenge another state in the U.S. Supreme Court, Maine sues New Hampshire. It claims that the neighboring state’s law, though it only governs lobster fishing in the Granite State, harms Maine and the court should nullify it.
But the court rules that Maine cannot sue New Hampshire for an action taken by its state government that controls activities only in that state’s waters through the exercise of powers that New Hampshire undoubtedly has. No luck, Maine.
That’s just what happened when Texas tried to get the Supreme Court to rule that four other states had violated their own laws in running the presidential election in each state. Texas wanted to override rulings by state supreme courts that the election procedures did not violate their own state laws.
The court said that Texas was not allowed to bring such a case against other states. In effect, it said, this is a political question, not our judicial business. Everybody has a right to go to court, but they abuse that right when they have no case. No luck, Texas.
In just a few words that fit with rulings of lower courts, this decision amounted to a lesson about democracy, the states and the law itself.
The Trump election complaints boiled down to these propositions: mail-in voting is more subject to fraud than in-person voting; Joe Biden won thanks to mail-in ballots; Biden’s victory was surprising (to Donald Trump, at least); the courts ought to conduct an independent investigation and, if the complaints are correct, annul the election.
Trump jumped right to the end and concluded the election was fraudulent, and he ought to be declared re-elected.
The judicial answer amounted to explaining to all that courts don’t investigate anything, but adjudicate based on the facts presented by the parties. Courts decide if that’s evidence and how the law applies to it.
In other words, the mere possibility of fraud or even its likelihood, as claimed by Trump, is not enough. Courts need proof, evidence, not assertions.
Despite their promises, Trump’s lawyers produced no evidence. They tried to exploit a belief that evidence is only a matter of opinion, implying that undisputed facts don’t exist.
Here the Trump election case overlaps the COVID-19 pandemic. Scientists, for whom evidence is essential, warned about the coronavirus threat. Seeking to minimize the crisis, Trump’s contrary view was not based on evidence. He tried to cast doubt on the scientific evidence.
The U.S. is paying the price for the federal government and many states ignoring the scientific evidence, because it did not fit Trump’s political goals. It’s just like the presidential election, where he denies state determinations that there was no fraud and he lost.
Most Republicans in Congress either supported Texas or remained silent. Some of them falsely claimed that Congress has more power than the people in deciding who won. They had no problem rejecting the will of an overwhelming national popular majority.
These attitudes endanger the American system of government. If enough GOP members of Congress share them, it is a recipe for political paralysis.
All the courts that ruled on Trump’s complaints rejected the effort to have judges decide the election. Under the Constitution, that decision is made by the people, not us, they said.
Republicans around the country so badly wanted Trump to win that they abandoned what the courts saw so clearly. Trump believed that, having appointed so many federal judges, they would return the favor by putting loyalty to him ahead of their own integrity and the Constitution. He was mistaken.
Biden probably hopes unrealistically for cooperation and compromise. Perhaps he calculates that after the GOP rejects this approach, the Democrats will win big at the next election.
What’s the alternative? The disappointed Texas Republican Party chair declared that, “perhaps law-abiding states should bond together and form a Union of states that will abide by the Constitution.”
That’s secession. In this case, it rejects the lawful actions of all 50 states and D.C. and of state and federal courts at every level. Would that “Union” elect its own president? Impossible.
Another option would be for Congress to trim the supremacy of federal law over state law. Let states go their own way and “bond together” on domestic policies as they see fit. Does America need a confederation like Switzerland with a weak, rotating presidency? Absurd.
America is great when it is united. A permanently divided America would no longer lead the world. Trump and his allies take the country in that direction. Does that prospect bring the country back from the brink?